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UNIVERSITY OF SUSSEX

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Title: UNIVERSITY OF SUSSEX


1
UNIVERSITY OF SUSSEX
  • HOW TO.IMPLEMENT THE AGE EQUALITY REGULATIONS
  • Chris Mordue, Partner
  • and
  • Helen Farr, Partner

2
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.

3
Overview
  • Discrimination
  • Exceptions exemptions
  • Recruitment
  • Performance Appraisals
  • Retirement
  • Statutory rights
  • Unfair dismissal
  • Redundancy payments
  • Action plan

4
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

5
Who can claim?
  • Employees
  • Contract workers
  • Members of pension schemes
  • Office holders
  • Members of trade associations
  • Applicants for vocational training

6
Discrimination
7
Current Discrimination Laws
Sex
Race
Disability
Religion or belief
Sexual orientation
Gender reassignment
8
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

9
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

10
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?

11
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?

12
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

13
Exceptions Exemptions
14
General Exceptions
  • Service related benefits
  • National minimum wage
  • Enhanced redundancy
  • Life assurance
  • Genuine occupational requirement
  • Positive action

15
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

16
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..

17
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

18
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

19
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

20
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

21
Recruitment and Promotion
22
Recruitment and Promotion
  • Advertising
  • Application forms
  • Job description/person specification
  • Short listing
  • Interviewing
  • Graduates
  • Promotion

23
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

24
Application forms
  • Move age/date of birth from main form to
    diversity monitoring form
  • Are you asking for unnecessary information that
    relates to age?

25
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?

26
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

27
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

28
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

29
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?

30
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

31
Retirement
32
Retirement
  • Retirement
  • National default retiring age of 65
  • Review 2011
  • Retirement ages below 65 require objective
    justification

33
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

34
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

35
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

36
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

37
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.

38
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

39
Transitional provisions
  • See pack

40
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

41
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

42
Statutory Rights
43
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

44
Action Planning
45
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

46
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

47
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

48
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.

49
Final QA
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