The Employment Equality (Age) Regulations 2006 Susie Munro

1. The Employment Equality (Age) Regulations 2006 Susie Munro Information Specialist – Employment & Education susie.munro@ace.org.uk

2. Background to the new law

3. Why do we need age discrimination law? • Change attitudes to older people • Prevent forced retirements • Help older people find work • Benefits for employers • Benefits for the economy

4. Benefits for employers • B&Q - absenteeism is 39% lower in it’s older employees. • Nationwide – annual turnover rate is 4% for older workers, 10% for younger workers.

5. Benefits for the economy • By 2021 – 1 million fewer adults aged 16-49 and 2 million more adults aged 50 -69. • Need more older workers to avoid a skills shortage. • Over 1 million people over age 50 out of work say they want to work. If all of these were in work would add up to £30 billion to economic output.

6. Timetable • 9th March 2006 – amended Regulations published, following consultation • Passage through Parliament • ACAS Guidance – April/May 2006 • DfES Guidance? • 1st October 2006 – Regs in force

7. Key points of new law • Employment and vocational training • Discrimination on grounds of age will be unlawful (unless justified or covered by an exemption) • New rules and procedure on retirement • Protection for all ages

8. Commission for Equality & Human Rights (CEHR) • Single equality body replacing EOC, CRE & DRC • Covering gender, disability, race, religion or belief, sexual orientation, age and human rights. • October 2007 • To promote and monitor discrimination law • To conduct inquiries and investigations

9. Definitions of discrimination

10. Direct Discrimination • A person is treated less favourably than others on the grounds of their age. • Unlawful unless justified • Includes treating someone less favourably because of their perceived age

11. Indirect discrimination • A policy or practice which puts people of a certain age at a disadvantage, compared with other people. • Unlawful unless justified

12. Harassment • On grounds of age, • Unwanted conduct which has the purpose or effect of: • violating a person’s dignity; or • creating an intimidating, hostile, degrading, humiliating or offensive environment for them. • It has to be reasonable to consider the conduct would have this effect, taking into account the perception of the person.

13. Victimisation Less favourable treatment resulting from the fact that a person has: • made a complaint or claim under the Regulations • may be about to make a complaint or claim • given evidence or information in connection with someone else’s complaint or claim.

14. Justification and Exemptions

15. Justification • Age discrimination will not be unlawful if it can be justified in objective terms • Justification = a proportionate means of achieving a legitimate aim • Proportionate = appropriate & necessary • The discriminatory act must actually achieve the aim, and • There must be no less discriminatory way of achieving the aim.

16. Legitimate aims Some examples of potential legitimate aims: • The health, welfare and safety of the individual • The particular training requirements of the job • The need for a reasonable period of employment before retirement

17. Exemptions • Recruitment of people over 65 • Length of Service benefits • Genuine Occupational Requirement • Positive Action • Statutory Authority • National Minimum Wage

18. Recruitment over 65 It will be lawful to refuse to hire someone aged 65 or over (or over the employer’s normal retirement age) without having to justify it.

19. Benefits linked to length of service • Potentially indirectly discriminatory against younger people • Generally, benefits linked to length of service will be lawful, but • if the length of service required is more than 5 years, the employer must show it is intended to fulfil a business need, eg. - encouraging loyalty - motivating workers - rewarding experience

20. Genuine Occupational Requirement An age requirement for a job will be lawful if it is • a genuine and determining occupational requirement, • and proportionate. E.g. acting jobs

21. Positive Action Two areas where positive action will be lawful: • Giving people of a particular age access to vocational training • Encouraging people of a particular age to use employment opportunities If this is reasonably expected to prevent or compensate for disadvantages suffered by people because of their age.

22. Retirement

23. Default retirement age • Currently there is no national retirement age • A new default retirement age of 65 will be introduced. This will apply if the employer has no normal retirement age. • Under 65 – will be unlawful to force someone to retire, unless justified in exceptional circumstances • Over 65 (or over employer’s normal retirement age if they have one) – will be lawful to force someone to retire, if correct procedure is used and at least 6 months notice is given

24. Right to request • Employee has a “right to request” not to retire. • Employer has a “duty to consider” the request.

25. Retirement procedure • Employer must give notice in writing of the retirement date, at least 6 months, and at most 12 months, in advance. • At same time, must give notice in writing of the right to request to continue working. • Employee can make request, in writing, at least 3 months and at most 6 months before the intended retirement date. • Employer must hold meeting with the employee. Employee has right to be accompanied by a colleague. • Employer must notify employee of the decision. • Employee has right to an appeal meeting with the employer.

26. Retirement - remedies • Less than 6 months notice of retirement or right to request – up to £2,320 (8 weeks pay) • If less than 6 months notice is given and the Duty to Consider procedure not completed correctly - Unfair Dismissal. • If less than 2 weeks notice is given (where retirement is found to be the reason for dismissal) – Unfair Dismissal • If dismissed before a normal retirement age, the Tribunal will not treat this as a retirement and it will be Unfair Dismissal, unless there is another fair reason for the dismissal.

27. Fair Retirement Dismissals Where at least 6 months notice of the retirement date is given, and the duty to consider procedure is followed correctly, the retirement will always be a fair dismissal.

28. Upper age limits

29. Upper age limits Upper age limits will be abolished for: • Unfair Dismissal claims (currently 65 or employer’s normal retirement age) • Statutory Redundancy Pay (currently 65 or employer’s normal retirement age) • Statutory Sick Pay (currently 65)

30. Adult Education & Training

31. “Vocational training” • The phrase used in the Regulations is “vocational training” • This will be interpreted widely to include all adult, further and higher education, including training provided by employers

32. The Regulations will apply to: • All institutions within the further education sector • Universities • All other institutions within the higher education sector • Vocational guidance providers • Qualifications bodies • Practical work experience provided by employers – work placements • But NOT schools

33. Unlawful discrimination Discrimination on the grounds of age will be unlawful in the following areas (unless it can be justified or is covered by an exemption): • The terms on with a course place, or training, is offered to an applicant • Admissions and selection for a place • Access to benefits for students • By excluding a person from the institution, or subjecting them to any other detriment • Harassment and victimisation

34. Some key areas: • Minimum or maximum ages for entry to a course.? • Is age taken into account in any way in admissions, even if there are no formal age requirements? • Do bursary or scholarship schemes take age into account? • Is residential accommodation provided to students regardless of their age? Can any difference in treatment based on age be justified?

35. Some specific issues Date of Birth on application forms • Employers generally advised only to ask for this on diversity monitoring forms • In jobs where CRB checks are required, it will be legitimate to ask for date of birth and detailed employment history • Care should be taken that age, when known, is not considered during the selection and interview process.

36. Some specific issues • Work placements – who has responsibility for non-discrimination? • Duty to consider procedure – timescale not appropriate for schools and colleges. • Funding – Modern Apprenticeships, Student Loans.

37. Further info: • Age Concern Information Sheet 17 – “How will the new law on age discrimination affect you?” (will be updated) www.ageconcern.org.uk • Employers’ Forum on Age - www.efa.org.uk (information aimed at employers) • ACAS – www.acas.org.uk • DWP Age Positive campaign – www.agepositive.gov.uk

38. Employment - Recruitment case study • Indirect discrimination: fewer people over age 30 would have max 2-3 years post-qualification experience. • Direct discrimination: employer has said they want someone younger. • Can the employer justify the discrimination? • Legitimate aim: employment planning, or reasonable period of employment before retirement? • Proportionate? Probably not – would not be able to show the aim is actually achieved. • If over 65 – no claim due to exemption for recruiting people over 65.

39. Education – case studies • Probably lawful. Positive action. Have to show that this prevents or compensates for disadvantages suffered by people because of their age. • Probably unlawful. Direct discrimination - not justified. A 65 year old could go on to further education or employment. Younger people not disadvantaged because of their age.

40. Education – case studies • Indirect discrimination – fewer younger people would meet this requirement. Justified? Legitimate aim? Proportionate? • Harassment - unwanted conduct with effect of creating offensive environment. Unclear who the claim will be against – probably the employer, as this may count as practical work experience. Problem with joint claim against both parties – claim against employer should be made in Tribunal, claim against college should be made in County Court.