Title: UNIVERSITY OF SUSSEX
1UNIVERSITY OF SUSSEX
- HOW TO.IMPLEMENT THE AGE EQUALITY REGULATIONS
- Chris Mordue, Partner
- and
- Helen Farr, Partner
2Objectives
- 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.
3Overview
- Discrimination
- Exceptions exemptions
- Recruitment
- Performance Appraisals
- Retirement
- Statutory rights
- Unfair dismissal
- Redundancy payments
- Action plan
4Introduction
- 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
5Who can claim?
- Employees
- Contract workers
- Members of pension schemes
- Office holders
- Members of trade associations
- Applicants for vocational training
6Discrimination
7Current Discrimination Laws
Sex
Race
Disability
Religion or belief
Sexual orientation
Gender reassignment
8Discrimination
- 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
9Discrimination
- 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
10Lawful 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?
11Objective 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?
12Harassment
- 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
13Exceptions Exemptions
14General Exceptions
- Service related benefits
- National minimum wage
- Enhanced redundancy
- Life assurance
- Genuine occupational requirement
- Positive action
15Exceptions 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
16National 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..
17Enhanced 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
18Exceptions
- 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
19Genuine 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
20Positive 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
21Recruitment and Promotion
22Recruitment and Promotion
- Advertising
- Application forms
- Job description/person specification
- Short listing
- Interviewing
- Graduates
- Promotion
23Advertising
- 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
24Application forms
- Move age/date of birth from main form to
diversity monitoring form - Are you asking for unnecessary information that
relates to age?
25Job 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?
26Applicants 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
27Interviewing
- 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
28Selection
- 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
29Graduates
- 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?
30Promotion
- 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
31Retirement
32Retirement
- Retirement
- National default retiring age of 65
- Review 2011
- Retirement ages below 65 require objective
justification
33Written 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
34Written 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
35Duty 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
36Duty 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
37If 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.
38Complaints 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
39Transitional provisions
40Retirement 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
41Automatically 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
42Statutory Rights
43Statutory 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
44Action Planning
45Analyse 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
46Policy 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
47Policies 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
48Training 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.
49Final QA