ALARM SOUTH EAST Employment Seminar AGE DISCRIMINATION DAVID

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ALARM SOUTH EAST Employment Seminar AGE DISCRIMINATION DAVID KNAPP JAMES MAJOR

ALARM SOUTH EAST Employment Seminar AGE DISCRIMINATION DAVID KNAPP JAMES MAJOR

Discrimination Legislation § Unlimited damages § Committed and competent Claimant lawyers § A good

Discrimination Legislation § Unlimited damages § Committed and competent Claimant lawyers § A good thing?

Current Position § No age discrimination legislation § But Employment Equality (Age) Regulations 2006

Current Position § No age discrimination legislation § But Employment Equality (Age) Regulations 2006 comes into force from 1 October 2006 § Age discrimination will be unlawful

Purpose § Government’s stated aims: – to ensure nobody is denied a job or

Purpose § Government’s stated aims: – to ensure nobody is denied a job or harassed because of their age – workers of all ages have equal chance of training and promotion – to create a more diverse workforce by helping employers attract, motivate and retain staff

Scope of Protection § Direct discrimination § Indirect discrimination § Victimisation § Harassment §

Scope of Protection § Direct discrimination § Indirect discrimination § Victimisation § Harassment § Direct and indirect discrimination can be justified if employer can show it was a proportionate means of achieving a legitimate aim

Discrimination at the start of Employment § It is unlawful for an employer to

Discrimination at the start of Employment § It is unlawful for an employer to discriminate on the grounds of age: – in the arrangements for determining to whom offers of employment should be made – by refusing to offer employment – in the terms on which employment is offered § The first two provisions do not apply to a person who is aged 65 or over

Advertising § Unlike other forms of discrimination, a discriminatory advert in itself is not

Advertising § Unlike other forms of discrimination, a discriminatory advert in itself is not unlawful § However, a discriminatory advert will be good evidence to show that the refusal of an application was unlawful age discrimination § Therefore: – ensure advertisement does not contain phrases which could be related to age – if there is a genuine occupational requirement, the advert should make that clear

Sifting, Selection and Interviews § Review selection criteria - beware of minimum and maximum

Sifting, Selection and Interviews § Review selection criteria - beware of minimum and maximum ages or other phrases which could be related to age § Age will be discernible from applications § Sifters should be given Equal Opportunities Policy and should refer to the selection criteria § At interview, ensure questioning is not discriminatory and that careful notes are kept, including a note of any relevant genuine occupational requirement

Employment Agencies § Employer will be responsible for the discriminatory acts of the agency

Employment Agencies § Employer will be responsible for the discriminatory acts of the agency § Unlawful for an agency to discriminate against any person on the grounds of age § Clear instructions to agencies as to job and selection criteria

Discrimination during Employment § Service-related pay and benefits exception § Enhanced redundancy payments §

Discrimination during Employment § Service-related pay and benefits exception § Enhanced redundancy payments § Employment related insurance § Pensions § Positive action exception § Vocational training

Service-related Pay and Benefits Exception (1) § There is an exception for service-related pay

Service-related Pay and Benefits Exception (1) § There is an exception for service-related pay and benefits where: – the length of service criterion is less than five years and – the same criterion applies to all other workers doing similar work § E. g. a requirement that employees complete two years of service before they are entitled to private health insurance will not be discriminatory

Service-related Pay and Benefits Exception (2) § There is also a general exception for

Service-related Pay and Benefits Exception (2) § There is also a general exception for service-related pay and benefits linked to a period of service in excess of five years providing: – the benefit is given with the aim of rewarding loyalty, encouraging motivation or recognising experience and – the aim pursued will bring business benefits § E. g. increased holiday entitlement after seven years of service will not be discriminatory providing the employer can show it rewards loyalty and benefits the business

Vocational Training § Employers and providers of vocational training cannot discriminate on grounds of

Vocational Training § Employers and providers of vocational training cannot discriminate on grounds of age § Access to training should be available to all § Exclusion for schools and sixth form colleges

Discrimination on Termination § Default retirement age of 65 years. Employers will have to

Discrimination on Termination § Default retirement age of 65 years. Employers will have to justify a normal retirement age below 65 years § If a retirement is “planned” there is a presumption that the employer is correct in saying that the reason for a dismissal is retirement § A retirement will be planned if: – it takes effect at the national default retirement age of 65 – it takes effect at the employer’s normal retirement age (retirement ages below 65 will have to be objectively justified) – the employer has followed the duty to consider procedure

Duty to Consider: Notification § Employer must give at least 6 months but no

Duty to Consider: Notification § Employer must give at least 6 months but no more than 12 months notice in writing of: – the intended retirement date – the right to request to work beyond the intended retirement date and – the employer’s duty to consider the request § If the employer misses the 6 month deadline, it has a continuing obligation to notify the employee up to 14 days prior to the intended date of retirement; § Penalty for failure to notify – 8 weeks’ pay

Duty to Consider: Request to Continue Working § Employee must make their request to

Duty to Consider: Request to Continue Working § Employee must make their request to continue working between 6 months and 3 months prior to the intended retirement date § If the employer misses the 6 month notification deadline, the employee can make their request at any time up to the intended retirement date

Duty to Consider: Consideration of Request § Employer must meet the employee to discuss

Duty to Consider: Consideration of Request § Employer must meet the employee to discuss the request within a reasonable period § Employee has the right to be accompanied § Employer must then give the employee its decision as soon as reasonably practicable after the meeting but does not have to give a reason for the decision § If the intended retirement date passes before the employee is notified of the decision, employment continues until the decision is notified to the employee

Duty to Consider: Appeal § Employee has a right of appeal § Employer must

Duty to Consider: Appeal § Employee has a right of appeal § Employer must hold an appeal meeting and notify the employee of the outcome within a reasonable period § Employment does not continue beyond the intended retirement date pending the outcome of the appeal

Retirement: Transitional Provisions (1) § Before 1 st October 2006: – give notice of

Retirement: Transitional Provisions (1) § Before 1 st October 2006: – give notice of at least 4 weeks of intended date of retirement – on 1 st October write to employee informing them of right to request working longer – employee can then make request up to 4 weeks after the date of termination – employer must follow duty to consider procedure

Retirement: Transitional Provisions (2) § After 1 st October 2006: – give notice of

Retirement: Transitional Provisions (2) § After 1 st October 2006: – give notice of the intended date of retirement of the longer of contractual notice and statutory minimum notice – inform employee of right to request working longer at same time – employee can then make request where practicable up to 4 weeks before the intended date of retirement, otherwise as soon as reasonably practicable but in any event within 4 weeks after the date of termination – employer must follow duty to consider procedure