The
Employment Equality (Age) Regulations 2006 introduce sweeping
changes and could pose problems for any employers who have not
prepared for it because the changes are so significant.
"Arguably these regulations are the single most important
development in discrimination law in the last 30 years," said
Ashley Norman, the head of equality & diversity at Pinsent
Masons, the law firm behind OUT-LAW.COM. "The impression we have
been getting from clients is that whilst there is a high level of
awareness about the legislation, considerable uncertainty exists
about the detail and implications for employers. Many organisations
are still struggling to understand how the legislation will affect
them."
The Regulations order that no discrimination on the basis of age
should take place in a company's recruitment, promotion, training
and provision of benefits to staff. They will also introduce new
concepts such as a duty for employers to consider an employee’s
request to continue working beyond retirement and a requirement for
employers to give written notification to employees at least six
months in advance of their intended retirement date to allow
employees to plan for their retirement.
"There is plenty of scope for employers to fall foul of these
new rules if they are not aware of the detail of this new
employment legislation," said Robin McIlroy, an employment lawyer
with Pinsent Masons. "My own suspicion is that we will see most
cases in relation to age discrimination in recruitment since
employers often do have a age criteria in mind when they are
recruiting. Generally employers expect to fill more junior
positions with younger candidates and more senior positions with
applicants above the age of 35 but below 50."
"In order to bring a successful Employment Tribunal claim a job
candidate will need to have some evidence that age could have been
the reason that they did not get the job," said McIlroy. "The
employer will then have to prove that they did not discriminate
against the applicant. If the employer has no transparency in the
recruitment process, that defence will be so much harder to
prove."
There are exemptions to the law. The minimum wage will still be
lower for people under 21 than people over it, which Trade and
Industry Secretary Alistair Darling said was within the new law. It
will also allow for discrimination when there are safety concerns.
"If someone runs an offshore diving company they will be entitled
to say to an 80-year-old man that they don't think it is such a
good idea," he told BBC Radio 4.
"Employers will be able to potentially justify age
discrimination if they can show that the less favourable treatment
was objectively justified," said McIlroy. "Just what can be
objectively justified will depend on the facts and circumstances
and we will see much interpretative case law in the coming
months."
"The regulations say that to objectively justify age
discrimination an employer needs to be pursuing a legitimate aim –
such as encouraging loyalty, rewarding experience or maintaining
health and safety - and the way in which this aim is pursued must
be proportionate. It is not difficult to foresee Employment
Tribunals all over the country grappling with these issues before
very long," she said.
