On October 1, 2006 the Employment Equality (Age) Regulations 2006 came into force, making it unlawful to discriminate against workers, employees, job seekers and trainees on the grounds of their age. The regulations prohibit an individual from being discriminated against both directly and indirectly (subject to the employer's defence of objective justification and a number of exceptions). They also prohibit victimisation and harassment of an employee on grounds of age. The regulations apply to all employers (there is no exception for small employers), including professional organisations. They also apply to employees of all ages - young and old. The regulations apply throughout the entire employment process. As such, employers risk discriminating on the grounds of age in relation to initial recruitment and selection of employees. Age related criteria should not be included in job adverts - an advert for "a young and dynamic professional" could be considered discriminatory. At interview an employer should avoid asking questions which suggest that they may take into account age when deciding who to recruit. The employer needs to concentrate on the demands of the job and the ability of the individual to meet those demands. The employer must avoid making stereotypical assumptions - for example by assuming that a young candidate will not have experience with a certain aspect of the job; or that an older candidate will not be able to use modern technology. Also, any existing terms in employment contracts will be void in so far as they discriminate on the grounds of age. The regulations contain a default retirement age of 65, below which compulsory retirement would be unlawful unless it is objectively justified. (For example a Partnership deed obliging all partners to retire at 60 would amount to discrimination.) However, once an employee reaches the age of 65 employers can lawfully oblige an employee to retire (so long as the correct procedure is adhered to by the employer), albeit the employer can allow the employment relationship to continue if it so wishes. Legal action has already been issued against the Government over the age limit and has been referred to the European Court of Justice. The Advocate General's opinion in a similar Spanish case was that such a national provision was justified. It remains to be seen what impact this will have. Individual complaints of age discrimination under the regulations can be brought to an employment tribunal which has the power to make an award under discrimination law, including unlimited compensation (with an element for injury to feelings).
For further information contact Kathryn Rowe at Samuel Phillips Law Firm on tel (0191) 232-8451 or email kathrynrowe@samuelphillips.co.uk
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