The Employment Equality (Age) Regulations 2006 come into force on 1st October 2006. Jeremy Consitt, employment law specialist at Harding Evans Solicitors answers some vital questions for employers.



 

1. Does it abolish the retirement age?
No. Employers can still rely on their normal retirement age or the default retirement age of 65 for both men and women (this will be reviewed in 2011). However, if your retirement age is below 65, it will need to be justified on an objective basis.

What it does mean is that an employee who is close to retirement age can apply to work beyond that age. Failure for the employer to consider that request means an automatic unfair dismissal. Like the other discrimination areas, potentially the sky is the limit on what the Employment Tribunal can award for compensation - so be warned!


2. Do I have to employ people beyond the retirement age?
Maybe, maybe not. An employee has the right to request to work beyond the normal retirement age. However, 6 to 12 months before an employee is due to retire, you must inform them of their impending retirement date and let them know they have the right to request to work beyond this, setting out how you will manage the retirement process. There is now a complex procedure to follow for retiring someone and failure to inform the employee of all this is an automatic unfair dismissal.


3. What is this procedure?
In style, it’s a little similar to an employee applying for flexible working time. In a nutshell, once the employee has been given notice of the retirement date, they must make their request no later than three months before the date due for retirement.

As the employer you must then consider the application carefully. Failure to do so also means automatic unfair dismissal. Within a reasonable period of time, you must then have a meeting with the employee to discuss their request (they have the right to be accompanied by a trade union representative or work colleague) and as soon as you can be reasonably expected to notify the employee of your decision in writing. There is, of course, a right of appeal. Worth taking proper legal advice certainly in these early days of it all!


4. So if I follow all this correctly and still want to retire the employee, does that mean they can just sue for age discrimination?
No. Providing the red tape is followed, ‘i’s dotted and ‘t’s crossed you may then be able to rely on your normal retirement age.


5. Does this cover just employees?
No. It covers company directors, partners, office holders, and many Crown servants. The big stumbling block for many employers will be the pre-employment process – more so than any other form of discrimination to date.

Job adverts should make no reference to age at all, unless it can be legitimately justified. ACAS are even advising in their guidelines that phrases such as “energetic” be excluded on the grounds that older candidates may feel at a disadvantage! It would be interesting to see the Employment Tribunals’ perception on that point though.

Age boxes should be struck off job application forms and, if absolutely necessary, included within equal opportunities monitoring forms. It is suggested that ‘milk rounds’ (i.e. seeking graduates at university fairs) or advertising jobs in magazines for younger people could put older people at a disadvantage. The same applies in reverse.

Also be weary of seeking employees with more experience – you will have to justify that such experience is absolutely necessary to the post, and not just something that is preferable.


6. Does the new law mean that jokes and good humour about age are unlawful?
I am afraid it does. It seems that the days of Terry Wogan and his Old Geezers (TOGs) could well be numbered! Even if not intended to be offensive, jokes and teasing could be deemed to be harassment if it is upsetting to another member of staff. It doesn’t all have to be directed at older members, but referring to a younger member of staff as “baby” or “pup” could be considered harassment.

Likewise a group of younger employees leaving out an older member of the group when socialising because they think that the pub/club is not their scene, can also be deemed to be a form of bullying/harassment according to ACAS suggestions, particularly if decisions are made on the social events which affect the workplace.


7. Must I update our policies and procedures?
Definitely. ACAS are very keen on this happening and have provided some guidelines. To ensure you protect your business it is advised that you seek legal advice to review what you currently have in place and make recommendations for improvements where necessary.
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