On 1 October 2006, new legislation on age discrimination will come into force. The new age discrimination regulations will protect workers (i.e. not just employees) of all ages (young as well as old) from discrimination, victimisation and harassment in a way similar to the existing sex, race and disability discrimination laws reports Dorset law firm Coles Miller.

“The Regulations will apply to all employers, including providers of vocational training. They will cover the whole employment relationship including recruitment, promotion, development, termination, perks and pay” remarked employment solicitor Michael McDonnell.

“A recent study by the Employers' Forum on Age and British Chambers of Commerce revealed that fewer than one in four small and medium sized employers in the UK are aware of the forthcoming age discrimination legislation”.

Key Changes
The most significant changes that will be brought about are as follows:-

• Victimisation, harassment and direct/indirect discrimination on grounds of age will be prohibited unless objectively justified. Objective justification should be used with caution as employers will need to provide real evidence to establish this justification.

• The Regulations will apply to prospective, existing and former workers (including, for example, the self-employed, consultants and contract workers).

• Employees will have a statutory right to request to work beyond compulsory retirement, which employers will have a duty to consider.

• Employers will have to give employees at least six months’ notice of their retirement date.

• There will be a national default retirement age of 65 and compulsory retirement below this age will be unlawful unless objectively justified.

• The current upper age limit for redundancy and unfair dismissal rights will be removed.

Potential Pitfalls
There are a number of danger areas that employers should be particularly aware of:

• Staff should not be promoted based solely on length of service

• Redundancy pay or redundancy selection criteria based on length of service is likely to be unlawful.

• Service related benefits, such as increased holiday entitlement, will remain lawful if they are based on a length of service requirement of five years or less. For length of service requirements over five years, employers will need to show an objective justification.

• Employers should avoid using words in recruitment advertisements that imply ages or specify an age criteria e.g. “3 years’ experience”, “mature”, “dynamic” or “under 25”.

• Criteria for training should be age neutral and promotion should be based on skills and competency, rather than age or length of service.

• Criteria for deciding pay scales may potentially discriminate against younger employees if the focus is on length of service (see above) or experience. Employers should be able to justify using these criteria as long as other factors, such as performance, are also included in the assessment.

• Medical cover should not have an upper age limit.

• Application Forms requesting dates of birth or dates of employment may well be unlawful.

“It is important for business owners and managers to ensure that all employees are aware of the new requirements, as employers may be held vicariously liable if their employees breach the Regulations. Employment Tribunals have the discretion to award successful claimants unlimited compensation, so the potential cost to employers must not be underestimated” concludes Mr McDonnell.

If you require any assistance with regard to the new legislation, or if you would like us to review your employment documentation to ensure compliance with the new Regulations, please do not hesitate to contact us.