Age concern

Since 1 October, the Employment Equality (Age) Regulations have made it unlawful for employers to discriminate against employees on grounds of age. Tom Whitney looks at the implications the changes might have for your business
Following the introduction of the Employment Equality (Age) Regulations, employees who have been discriminated against on grounds of age can take their complaint to an employment tribunal. Employers who lose can be forced to pay compensation. There is no upper limit to this amount.

The key legal changes to be aware of include:
  • There is now no age limit for unfair dismissal claims, because the upper-age limits for employees claiming unfair dismissal have been removed. Previously, employees had to be within certain age limits (below the normal retiring age in the employer's business if there was one, otherwise below 65) to claim this right. The upper- and lower-age limits for employees receiving redundancy pay have also been removed.
  • It is now unlawful to compel someone to retire before the national default retirement age of 65 unless there is an 'objective justification' for doing so.
  • Employers are required to consider employee requests to work beyond 65 (but there is no duty to accept such requests).
  • Employers are required to give employees between six and 12 months' notice of the date on which they want them to retire, and must at the same time inform employees of their right to request to work beyond that date.
There are certain circumstances in which it is acceptable under the new rules to discriminate on grounds of age, but you must be able to prove that there is an 'objective justification'.

"Objective justification will be a high hurdle for employers to cross," argues Acas chair Rita Donaghy. "They have to prove there's a legitimate business need to discriminate and that there is no other alternative."

A written policy

"Produce a written policy demonstrating your intention not to discriminate on grounds of age," advises Donaghy. "It should cover issues such as recruitment, training, promotion and retirement.

"An equality policy is the best way of demonstrating that you take discrimination seriously and have taken steps to prevent it," she continues. "You also need to ensure your staff are aware of the regulations and monitor your policies on an ongoing basis to ensure the decisions you make are not based on age."

Review your policies on recruitment and promotion. Remove age limits from job advertisements and avoid using words like 'young' or 'mature'. You should also remove age and date-of-birth requests from job application forms. Instead, use a separate 'diversity-monitoring' form to record age-related information. Promote people on the basis of measurable performance and demonstrated potential only.

Make sure your anti-harassment policy also covers age. You may have a standalone policy or one that is part of a wider equal-opportunities policy. Bullying could take the form of inappropriate comments, for example, by suggesting someone is 'over the hill'.

"Ageist insults could be seen as harassment, but misplaced humour about age is also risky and can apply to young as well as older employees," Donaghy concludes.