Network Journal 2006 Issue 1 March

Age bias will be outlawed

From 1 October 2006, it will be unlawful for employers to discriminate on the grounds of age.

It covers all ages, discrimination for being too young, too old or too middle aged! The Regulations are not yet finalised but the basic framework and most of the detail is in place.

Usdaw expects employers to be making proposals to change terms and conditions in anticipation of the new law. It also expects enquiries from members as press coverage increases.

Usdaw reps need to start thinking about how the changes will affect their members and how they can protect their interests.

On this page we look briefly at what lies ahead and in future issues of Network we will be giving more details on this complex subject.

The Regulations will impact on employees in terms of: Recruitment and promotion: Retirement age: Unfair dismissal: Harassment: Terms and conditions: Redundancy terms: Training.

There will be four areas of discrimination:

• Direct

Where a decision is made or a benefit is granted or not granted simply because of the employee's age.

• Indirect

Where a rule or practice is applied to everyone but adversely impacts on a certain age group.

• Harassment

Unwanted conduct on the grounds of age which is humiliating, offensive, etc.

• Victimisation

Reprisal for having taken some action protected by the Regulations, eg. raised a grievance, lodged a tribunal claim.

Employees will be able to enforce their rights in the tribunal and the usual three month time limit will apply. As with other discrimination claims the compensation will not be capped and claims can be made to include injury to health/feelings.

What Do the Regulations Cover?

Recruitment and Promotion

Employers can impose an upper age bar of 65 in line with the default (ie. the State) retirement age.

Employers cannot impose an upper age bar of less than 65 or a lower age bar unless they can justify it.

In Usdaw sectors age related bars may be justified if they relate to statutory obligations, eg the sale of alcohol, driving licences, gaming and licensing rules.

Setting a Retirement Age

There will be a national default retirement age of 65.

This means that contractual compulsory retirement ages set by companies at below 65 are likely to be unlawful. A company retirement age of less than 65 would have to be justified.

New Procedures on Retirement

There will be no automatic retirement age at 65 and the employer must follow statutory procedures before making someone retire.

The employee has the right to make a request to work beyond retirement age. The employer has a duty to consider it - similar to the right to request flexible working.

If the procedures are not followed the employee can apply to a tribunal. Importantly the statutory upper age limit for making a tribunal application (65 or employers normal retirement age) will no longer apply.

Members should be advised to appeal against their dismissal if they wish to challenge a retirement dismissal.

Statutory Redundancy Pay

Currently the statutory redundancy pay formula is based on an age-related criteria. This will have to be changed. Although details are not yet known, we expect, service under the age of 18 will be counted, the upper age threshold of 65 will be removed, but the length of service will be retained as a factor.

The Government's proposal to level out the multiplier and apply to everyone a factor of one week's pay for every year of service is being resisted strongly by the TUC and no conclusion has been reached yet. The Government's proposals amount to levelling down.

All company contractual enhanced severance arrangements will have to be reviewed to eliminate age related discriminatory factors. Union reps should resist any proposals to level down under company schemes.

Terms and Conditions

Terms and conditions which depend on age are likely to be directly discriminatory and should be levelled up. Terms and conditions which are based on service are capable of being indirectly discriminatory and should be reviewed with care. However, if the service requirement is less than five years this is exempt. Similarly, where longer service related benefits are included these can be justified in terms of reflecting high levels of experience, or to reward loyalty, or to maintain motivation. The regulations will also impact on Statutory Sick Pay.

Wages

The national minimum wage rules are not a breach of the regulations. Employers who pay rates exactly in line with the national minimum wage scales will be acting lawfully.

Occupational Pension Schemes

In general, pension rules are exempted from the Age Discrimination Legislation and age may continue to be a factor in rules of admission, calculation of contributions and benefits, etc. New Inland Revenue rules will allow an employee to draw their company pension and continue in paid employment beyond the age of the Pension Fund.

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