UNIVERSITY OF SUSSEX

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UNIVERSITY OF SUSSEX

• HOW TO.IMPLEMENT THE AGE EQUALITY REGULATIONS
• Chris Mordue, Partner
• and
• Helen Farr, Partner

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Objectives

• Identify potential for age discrimination
• Understand the need to change attitudes towards
  age to avoid discrimination claims
• Identify behaviour that might be regarded as age
  related harassment
• Understand consequences of breaching the law and
  the penalties
• Explain the procedure which must be followed when
  an employee approaches retirement and the
  employer's obligations to consider any request to
  continue working.

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Overview

• Discrimination
• Exceptions exemptions
• Recruitment
• Performance Appraisals
• Retirement
• Statutory rights
• Unfair dismissal
• Redundancy payments
• Action plan

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Introduction

• www.agepositive.gov.uk
• British labour force is ageing
• By 2025 half the adult population will be 50 and
  over
• The new middle aged
• Old dogs and new tricks
• Older workers are just as able to learn new
  skills but there may be a difference in learning
  styles as a result of contrasting educational and
  occupational experiences

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Who can claim?

• Employees
• Contract workers
• Members of pension schemes
• Office holders
• Members of trade associations
• Applicants for vocational training

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Discrimination
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Current Discrimination Laws
Sex
Race
Disability
Religion or belief
Sexual orientation
Gender reassignment
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Discrimination

• Unlawful on the grounds of age to
• Discriminate directly
• Discriminate indirectly
• Subject someone to harassment
• Victimise someone because they have made a
  complaint etc.
• BUT Exemptions, exceptions, genuine occupational
  requirements, objective justification

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Discrimination

• Direct
• An individual can not be treated less favourably
  because of their age
• Covers their perceived age
• Indirect
• A provision criterion or practice applies to all
  employees but has the effect of disadvantaging
  those of a particular age

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Lawful discrimination

• Objective justification
• A proportionate means of achieving a legitimate
  aim
• Example
• a legitimate aim e.g. encourage loyalty
• proportionate means of achieving that aim?

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Objective Justification

• Ask
• does your policy actually encourage loyalty?
• does the discrimination suffered outweigh the
  importance and benefits of loyalty?
• Is there some other way we could encourage this
  without discriminating?

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Harassment

• Vicarious liability
• All reasonable steps to prevent.
• Do all employees understand what harassment
  means?
• Visitors, customers the public etc
• Training
• For those involved in day to day decisions e.g.
  work allocation, performance appraisals
• Supervisors etc who will need to recognise and
  deal with harassment

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Exceptions Exemptions
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General Exceptions

• Service related benefits
• National minimum wage
• Enhanced redundancy
• Life assurance
• Genuine occupational requirement
• Positive action

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Exceptions Benefits based on length of service

• Example you must have service before you
  are entitled to receive private health insurance
• Any benefit which is earned by achieving 5 years
  service or less is exempt
• If more than 5 years?
• Lawful if it reasonably appears to the employer
  that the award or increase of the benefit
  fulfils a business need

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National minimum wage

• An employer can use the same age bands as the NMW
• 16 17
• 18 to 21
• 22 and over
• Can pay at the NMW
• Or above..

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Enhanced redundancy payments

• Employer can lawfully make more generous
  redundancy payments than the statutory scheme so
  long as the same methodology of the statutory
  scheme is used.
• Employer can
• Increase the cap on a weeks pay
• Multiply either the age factor figure (0.511.5)
  or the whole statutory payment by a figure of
  more than one
• Provided all employees payments are calculated in
  the same way

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Exceptions

• Statutory requirements
• Age criteria used in existing legislation will
  remain lawful
• Life assurance cover
• Employer can stop cover for a worker who has
  retired early on the grounds of ill health when
  they reach the age at which they would have
  retired if not for their ill health

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Genuine Occupational Requirement

• Very limited
• Genuine occupational requirement that the job
  holder must be a particular age
• Nature of the work
• Context in which it is carried out
• Review over time if the requirement continues to
  apply

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Positive action

• Distinguish positive action v positive
  discrimination
• Can
• encourage applications but selection must be on
  merit
• give access to training
• To prevent or compensate for disadvantages linked
  to age

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Recruitment and Promotion
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Recruitment and Promotion

• Advertising
• Application forms
• Job description/person specification
• Short listing
• Interviewing
• Graduates
• Promotion

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Advertising

• Where and how do you advertise?
• Remove ageist language or imagery and focus on
  needs of the job
• Assign responsibility for vetting of all
  promotional literature

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Application forms

• Move age/date of birth from main form to
  diversity monitoring form
• Are you asking for unnecessary information that
  relates to age?

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Job descriptions/person specifications

• If asking for a number of years experience can
  this be objectively justified?
• Could an individual have the skills required but
  not had the opportunity to demonstrate them over
  a period of time?
• Are the numbers of years required excessive?
• Qualifications required
• Are they necessary?
• Are they current?
• Are there other ways of specifying/attaining the
  skill level required?

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Applicants nearing retirement

• Not unlawful to refuse employment where, at the
  time of application, applicant
• is over the employers NRA or 65 if there is no
  NRA
• Will reach the employers NRA or 65 if there is
  no NRA within 6 months of application
• If you do accept their application, can not
  discriminate in terms of the offer made

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Interviewing

• More than one interviewer
• If more than one applicant has the requisite
  skills decide on the basis of the one who has the
  best skills mix
• As with short listing
• Train
• Check
• Record and keep records for 12 months

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Selection

• Decisions about recruitment must be based on the
  skills required to do the job
• Have all those who make judgments on recruitment
  been trained on
• the new age laws?
• avoiding stereotyping and making objective
  judgements?
• Monitor decisions for any evidence of age bias
• Publish results

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Graduates

• Asking for graduates could be interpreted as
  candidates in early 20s
• Make it clear you are not interested in age just
  qualifications
• Milk rounds and age discrimination
• If sole method of recruitment is this objectively
  justifiable or would an exemption or exception
  apply?

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Promotion

• Make opportunities for promotion known to all
• Take care with internal references
• Avoid any decision based on length of service
• Keep records of decisions and appraisals

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Retirement
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Retirement

• Retirement
• National default retiring age of 65
• Review 2011
• Retirement ages below 65 require objective
  justification

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Written notice and right to request work beyond
retirement

• Between 12 and 6 months before employee due to
  retire
• Employer notify them in writing of
• Right to request to continue working
• Date of intended retirement
• Consider software system that would send an e
  mail alert to relevant mangers to start this
  procedure

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Written notification

• How the retirement process will be managed
• Explain the right to request to continue working
• Explain employer entitled to refuse request
• See timeline in pack

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Duty to notify

• 6 months deadline missed
• May be liable for compensation AND
• Continuing duty to notify
• MUST notify within 14 days of retirement
• Any termination after this date is deemed not a
  retirement but dismissal and is automatically
  unfair
• If employer fails to inform employee can still
  make request. Employment must continue until the
  day after the employer notifies the employee of
  their decision

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Duty to consider

• Notify decision in writing as soon as reasonably
  practicable
• No need to give reasons for decision
• If correct procedure followed reason for
  dismissal will always be retirement
• ACAS guidance
• Giving reasons would be good practice but..
• Be careful with what you say

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If request granted

• Sensible to agree new retirement date
• Continue working on the same terms. Can agree
  other terms (e.g. part time and pro rata
  benefits) but if terms were less favourable (e.g.
  remove benefit of PHA) could amount to age
  discrimination.

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Complaints to ET

• Failure to give 6 months notice
• Compensation of up to 8 weeks capped pay as ET
  considers just and equitable in the circumstances
• Denial of right to be accompanied
• Up to 2 weeks capped pay

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Transitional provisions

• See pack

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Retirement unfair dismissal

• Retirement is the 6th fair reason for dismissal
• Dismissal will be fair if in accordance with new
  procedural requirements (i.e. written
  notification of right to request etc)
• Statutory dismissal procedures do not apply

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Automatically unfair dismissal

• Failure to inform employee of right to request
  continue working and of intended retirement date
  at least 14 days before retirement date
• Duty to consider procedure still underway or
  employee has not been informed of the decision
• Failure to consider the employees appeal

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Statutory Rights
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Statutory Rights

• Unfair dismissal
• Upper age limit of 65 removed
• Redundancy payment
• Lower age limit of 18
• Upper age limit of 65
• Tapering between 64 and 65 all removed
• Two year qualifying period remains
• Twenty year cap on length of service remains
• Specific exemption for enhanced redundancy
  payments

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Action Planning
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Analyse available information

• Analyse information that you have re. employee
  ages
• Look at the age profile
• Need to plan for a retirement peak?
• Positive action to redress any imbalances?
• Training records
• Staff surveys and exit interviews

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Policy Review

• Look at your policies could any be said to be
  discriminatory (e.g. LIFO on redundancy)
• If so what is the underlying reason for that
  policy?
• What evidence do you have to support the fact
  that this policy will actually achieve your
  business aim?
• (or are we basing policy on assumptions?)
• Is there an alternative way to achieve this
  result?
• Record your findings in case of challenge

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Policies review

• Equal opportunities
• Absence policy
• n.b. service related benefits such as sick pay
  PHI and early retirement
• Holidays and other leave
• Staff transfers
• Sabbaticals
• Flexible working
• Annex 3 ACAS guide

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Training promotion Action

• Survey training and promotion policies to see
  whether policies comply with the new law
• Are opportunities for training and promotion
  offered to all employees?
• If not available to all employees, can any
  discriminatory impact be justified?
• Consider, in particular, graduate and fast track
  promotion schemes.

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Final QA