1. HOW TO…. IMPLEMENT THE AGE EQUALITY REGULATIONS
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.
Trainer then can ask what specific objectives each delegate has and ask them to put it on a post it on the flip chart.

3. Exceptions & exemptions Recruitment Performance Appraisals Retirement
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
Since the 1970s, the birth rate has been very low, less than the ‘replacement rate’ and there has been an increase in the number of young people extending their education into further and higher education; and Life expectancy and health beyond the age of 60 is generally improving faster than ever before, and could continue to accelerate. This means people who have previously been considered as ‘older workers’ are as capable of working as ‘middle-aged’ people.
These factors need to be taken into account to ensure your company stay competitive in the current climate. Employers who rely on younger workers and do not adjust their recruitment to include middle aged and older workers will face problems.

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
Mention Post termination discrimination

9. Discrimination Direct Indirect
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
Cf “on racial grounds” – covers discrim on the grounds of someone else's race
“PCPs” = selection criteria; staff policies; benefits scemes;employment rules and policies

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?
Examples of a legitimate aim:
Economic factors such as business needs and efficiency
Heath welfare and safety of the individual (e.g. would a job be dangerous for a younger or older worker)
The particular training requirements of the job

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 Training
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
Fulfills a business need = rewards loyalty
Increases or maintains motovation

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…..
NMW rates = £5.05 – 22 and over
£4.25 – 18 to 21
£3.00 – 16 & 17 year old

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 (0.5;1;1.5) or the whole statutory payment by a figure of more than one
Provided all employees payments are calculated in the same way
Say statutory formula was as follows:
10 years x 1.5 x £290.
The following examples would be permissible
[2 x 1.5 ] x10 x £290 oR
[10 x 1.5 x £290.] x 2 OR
10 x 1.5 x £500
This exemption can be applied to employees who do not have 2 years service but receive a redundancy payment and to volunteers.

18. Exceptions Statutory requirements Life assurance cover
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
Examples:
Giving people of a particular age access to training (e.g. limit a computer training course to those over 55 because they have had less exposure to such training in the past).
In contrast to the RRA and SDA – Reg 29 permits positive action in the absence of evidence showing that a particular age group is under represented in a job. Rather positive action should prevent or compensate for disadvantages linked to age among the relevant section of people to whom the positive action relates.
Disadvantage may be that persons of a particular age are under represented in a job or there is evidence of widespread harassment of such persons.

21. Recruitment and Promotion

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

23. Where and how do you advertise?
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
Advertising – where and how – do you reach the whole labour market?
All organisations promotional literature – not just recruitment, as could be evidence of culture/look of the company that is desired.

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?
Job description = outlines duties required of a particular post
Person spec-= gives the skills knowledge and experience required to carry out these duties
Qualifications
Are they capable of objective justification
Make it clear you will consider equivalent or similar level alternative qualifications

26. Applicants nearing retirement
Not unlawful to refuse employment where, at the time of application, applicant:
is over the employer’s NRA or 65 if there is no NRA;
Will reach the employer’s 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
Reg 7(4)
Note – if an organisations NRA was say 68 – you could not rely on this provision to refuse to employ someone who was 6 months within the age of 65.

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
Publishing results show commitment to anti discrimination legislation and that you take it seriously

29. Graduates
Asking for “graduates” could be interpreted as candidates in early 20’s
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
You don’t have to have a fixed retirement age.

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
If employer fails to inform the employee – employee will have the right to make a request at any stage until dismissal.

36. Duty to consider ACAS guidance
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
ACAS guidance suggests it is good practice to give reasons and a more detailed explanation of your retirement policy. This may enable the employee to leave with dignity and respect and help you maintain good workplace relationships with other employees. However is this a good idea or might it leave you open to challenge on some other basis?
Be careful with what you say – other forms of discrimination?

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.
Employee has right to request not to retire: (Sch 6)
Indefinatley
For a stated period or
Until a stated date
Procedure must be repeated when employee nears an extended point for retirement.

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
Sch 6 paras 10 to 13

39. Transitional provisions
See pack
EXAMPLE
3 months notice (of retirement dismissal) given on 1st September 2006 to expire on 30 November 06.
This will be treated as if proper [6 months] notice had been given under Sch 6 so long as:
Min notice (as above) is given AND
You write again PRE 1 Oct 06 to say – we confirm we will be retiring you on 30 November ;and
Notify employee of right to request on or as soona s practicable after that date.
Employee has right to request not to retire at least 4 weeks before expiry of notice or as soon as is reasonably practicable (subject to longstop of 4 weeks after termination.

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
S98(2) ERA

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 employee’s appeal

42. Statutory Rights

43. Statutory Rights Unfair dismissal Redundancy payment
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
Policy review
Collect and consider:
employment contracts, policies and staff handbooks, as well as informal or unwritten policies and practices.

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
NB Equal opps – probably need to give examples of what could constitute age related harassment.
Review equal opportunities policies, monitoring forms and procedures and update where necessary.
Link to disciplinary procedure

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 Q&A