Age Discrimination

From 1 October 2006 the Employment Equality (Age) Regulations 2006 come into effect. These make direct discrimination, indirect discrimination, harassment and victimisation unlawful on the grounds of age. The following areas are covered by the legislation.

Recruitment and selection

It will only be lawful to specify a particular age where an employer can show it is objectively justified, such as fixing a maximum age for recruitment to reflect training requirements or when there is a genuine occupational requirement such as a young actor for a particular role.

Job adverts must avoid using language which might imply a desire for someone of a particular age, such as ‘lively’ ‘young’ or ‘mature’.

With regard to recruitment only, the legislation does not apply for over 65s.

Service related benefits

Employers may continue to use length of service criteria to reward staff, but the period of service must not be more than five years. A simple example would be where an additional day’s annual leave is granted for each year of service. If the length of service criteria exceeds five years, it can still be used providing the employer can show that it is fulfilling a business need, for example as a motivator or a reward for loyalty.

Retirement

There will be a national default retirement age of 65, with lower ages having to be objectively justified on a case by case basis.

When an employer wishes to retire an employee of over 65 they will have to notify the employee between six and twelve months in advance of the intended retirement date and tell the employee of their right to request to work beyond the retirement date. If such a request is made, it must be made by the employee no less than three months before the intended retirement date. All employers must consider such requests, meet to discuss it, and provide a response within a reasonable time frame. Provided the correct procedure is complied with there will be a presumption that a dismissal at or above the age of 65 is a planned retirement and there will be no right to claim unfair dismissal.

An employee aged 65 or over who is dismissed for any reason other than a planned retirement will have the right to bring a claim for unfair dismissal.