To a fanfare of employment lawyers sharpening their pencils, the Employment Equality (Age) Regulations 2006 came into effect on 1st October 2006.

The Regulations make it unlawful to discriminate in a variety of situations on age grounds. But, it may be fortuitous in that they address issues becoming more prominent as we live in a society with an increasingly ageing population. Today it’s estimated over a million people choose to work beyond state pension age. In future many more of us will have to continue working longer to support ourselves and maintain the ratio of workers to non-workers. Previously no legislation existed in this country to protect older workers’ rights. Perhaps the time’s now ripe for that, as there will be a lot more of us!

Regulations cover employers and employees, but extend far beyond to cover people in training, professional bodies, trade unions, office holders like directors, clergy, and many more - it’s not just for big companies.

Most people think of age discrimination in terms of discrimination against older people. It can apply where younger people are discriminated against. So, as well as avoiding job advertisements which specify upper age limits, employers must be wary of framing advertisements which put off younger people.

We should also all take note that as well as applying to clients we may be advising, the Regulations also apply to our own businesses - it’s important to ensure our own houses are in order.

But, Regulations do not cover the supply of goods and services so would not, for example, prevent insurers refusing to issue a policy purely on age grounds.  You may know this - make sure your staff who have contact with clients do too.

Read the Regulations and obtain guidance on their applicability to your particular business.  The good news is many lawyers are gearing-up to produce information, seminars etc. and there is bound to be a lawyer nearby ready to advise for their usual modest fee!

Obviously all forms of age-related harassment and victimisation are outlawed. However Regulations also prohibit direct and indirect discrimination on age grounds. Direct discrimination is often very clear (employers advertising for job applicants who must be under 50).  However, indirect discrimination could be less obvious (job advertisements seeking to recruit “recent graduates” could be seen to be discriminating against older applicants). Take care!

While requiring a job applicant to put their date of birth on a job application may not amount to discrimination, it could be evidence discrimination is taking place.  Prudent employers may choose to request such information on separate tear-off slips for monitoring and the recruiter not being provided with that information.

During employment employers must not discriminate against employees on age grounds when, say, granting promotions, pay rises and training opportunities.  It could be wrong for an employer to refuse to train older staff approaching retirement on the grounds employers would not obtain a full return on their training investment.

At the end of someone’s career the Regulations impose a process which employers, and indeed employees, should follow in the run-up to retirement.  The default retirement age is 65 but employees have the right to request to work beyond retirement age and employers must follow a procedure to properly consider such requests.  There is a notice system which employers must adopt when employees approach retirement. Failure to follow it is likely to result in penalties for the employer.

Remember all these requirements apply across the board (junior grades through to senior management and, indeed, business owners such as partners).  The practice of some city firms in routinely “managing out” or “exiting” senior partners and directors when they reach their mid-50s may have to end.
Are the Regulations just more red tape to burden employers (another example of expanding opportunities for employees to take employers to industrial tribunals)?  It’s worth remembering a number of major employers like B&Q, ASDA, HBOS already embrace the need to diversify their workforce for sound business reasons.

The Chartered Institute of Personnel and Development identifies a good business case for avoiding discrimination, regardless of Regulations.  Evidence shows older workers tend to stay in their jobs longer, have less absenteeism and are, on average, equally effective in their work.

There are some limited situations in which indirect or even direct discrimination could be permissible, but there are some high hurdles to overcome and it would be wise to take detailed legal advice. This article cannot cover the Regulations in detail and, as with most new legislation, it remains to be seen how the Courts and tribunals will interpret it.

At the end of the day we all hope to make it to 65 and beyond, so what today might seem like red tape and unwelcome Regulation could feel more like ensuring we get a “fair crack of the whip” when we get there tomorrow!

Andrew Welch, Partner and Head of Litigation

Stephensons Solicitors

As a member of The Chamber of Commerce your business is automatically covered by a Legal Expenses Insurance Policy that provides up to £65,000 worth of Legal Fees to pay for a Solicitor or Qualified Consultant to represent you in disputes with employees including Age Discrimination. It also covers you for a further £65,000 in the event of an Employment Tribunal granting an Award for damages to the Employee or Employees in question.

As well as Employment Disputes your Chamber Legal Expenses Policy provides a further £65,000 in each area to represent your business in Defending Prosecutions, License Protection, Property Disputes, Landlord Disputes, Data Protection and Tax, VAT and Inland Revenue Investigations.

For more information about The Chamber Legal Expenses scheme or details of how to access the 24/365 Legal Advice Line please check out Liverpool Chamber’s main website, or call us on 0151 227 1234.