Age Discrimination Update
Companies cannot afford to be complacent about the impact the legislation will have upon the way they run their business. They will need to look at recruitment, training and retirement policies as well as at pay and benefit structures to ensure they do not fall foul of the new legislation or business could find themselves facing claims which potentially carry substantial, uncapped damages.
The law is far reaching and will provide protection not only to existing employees but to prospective and former employees and will cover all workers which includes agency and contract workers in relation to employment from the moment they apply for a job.
In general terms an employer may discriminate against an employee directly by treating a person less favourably because of their age e.g. deliberately not employing an older/younger person.
Indirect discrimination takes place if an employer unjustifiably applies an apparently "neutral" requirement for a job that puts persons of a certain group at a disadvantage compared to other workers who are not in that group. Therefore, advertisements specifying online applications, or requiring the applicant to be young and dynamic or mature are all likely to be discriminatory. The new legislation aims to ensure that selection, training and other employment matters are not based on age but on more relevant job related factors. Young and old people are equally protected. Employers are advised to avoid specifying age or experience as requirements for jobs, unless they can be justified. In practice, this may be difficult for an employee to avoid.
In relation to both direct and indirect discrimination if it can be shown that treatment or requirement is a proportionate means of achieving a legitimate aim there will be no discrimination.
Harassment and Victimisation
Claims for harassment and victimisation follow the same format as other discrimination claims. Harassment will occur where a person is, on the grounds of age, subjected to unwanted conduct that violates that persons dignity or creates an intimidating or degrading environment. If a person is treated less favourably because they have asserted a right under the legislation they will be able to pursue a victimisation claim.
The legislation introduces a default retirement age of 65. Employers who have a retirement age below the age of 65, will be required to either change it to 65 or be able to justify the lower retirement age; not an easy task. Employees will be entitled to request to continue working beyond retirement age and it will be the employers duty to consider that request and follow a specified process. Employers are also required to inform employees in writing at least 6 months in advance of their intended retirement age that their retirement is approaching. A failure to comply with this requirement will entitle the employee to continue working until the employer provides that notice.
As with any new legislation there will be period of uncertainty as to how the new law will operate in practice but in order to prevent claims it is essential that employers are fully aware of the legislation because it is highly likely that employees, with the publicity surrounding its introduction, will be and the floodgates to claims will open come October 1.
The articles in this alert are not meant as a substitute for advice on particular issues and are written in general terms. You should seek specific advice before taking any action based on the information that this alert contains. If you have any queries or require any advice in respect of this bulletin or any other matter please contact the Bennett Griffin LLP Employment team:
Peter Bennett: email@example.com
or telephone 01903 706952
Elaine Smith: firstname.lastname@example.org
or telephone 01903 706966
Charlotte Hammond: email@example.com
or telephone 01903 706981