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Avoiding age-related bias at work

New rules of employment will mean major changes for GPs and their staff, says lawyer Lynne Abbess.

GP employers will need to master a new set of legal rules for dealing with staff when the Employment Equality (Age) Regulations 2006 come into force on 1 October 2006. Partners are also protected.

Unjustified direct and indirect age discrimination of people of any age will be outlawed, as will harassment and victimisation on grounds of age.

The regulations apply to employment and vocational training.

All workers come within their scope including partners, contract workers and job applicants (partners include GP partners). Prospective employers will no longer be able to ask employment agencies to find or avoid applicants above or below specific ages.

Selection and promotion

Age group rather than age is defined in the regulations. The definition is 'a group of persons defined by reference to age whether ... a particular age or range of ages'.

To avoid age discrimination in relation to recruitment, selection and promotion of staff, practices' decisions in these areas should not normally be based on age, but should depend on the skills and competencies required for the job. Make staff aware that age is not an issue.

Practices need to check their procedures for advertising, shortlisting for interview, conducting interviews and selection criteria. Eliminate refer- ences to age such as 'must have at least 10 years' experience' or 'mature'.

However, there is an exemption from protection in the case of job applicants who have reached 65 years or will do within six months of applying for a post. Applicants over 65 will not be able to claim to an employment tribunal that they have not been selected because of their age.

In exceptional circumstances, an employer may be able to defend a claim if able to prove discrimination was 'a proportionate means of achieving a legitimate aim'.

Proportionate means that you are contributing to a legitimate aim; any discriminatory effect is outweighed by the importance of the legitimate aim and you have no alternative. A legitimate aim can include business needs and efficiency, health, welfare and safety of the individual and the job's training requirements. The burden of proof is on the employer.

Another exemption is for where a characteristic related to age is a genuine occupational requirement, for example, hiring actors to play younger or older characters in a stage play.

Service-related pay

Length of service is often used as a criterion for pay, and for non-pay benefits such as staff discounts or extra holiday entitlement. This can amount to indirect discrimination because some age groups are more likely to have the necessary length of service than others.

Service-related benefits are exempted from the regulations unless the staff member has over five years' service.

But the employer must be able to demonstrate that it appeared reasonable to use the criterion to fulfil a business need such as encouraging loyalty and motivation and rewarding experience.

Retirement

Under the new rules, the default retirement age is 65.

Practices can continue to employ staff over 65, but retirement ages below 65 will generally be illegal unless the practice can either satisfy the test of 'objective justification' or if the employee agrees to it.

Employers with retirement ages below 65 will have to change them if unable to justify them, or obtain agreement from the employee. Putting pressure on staff to retire before 65 is also discriminatory.

This means that contracts of employment stating retirement before 65 should be reviewed, particularly for staff approaching retirement age.

If a staff member wishes to retire before 65, for instance if the normal retirement age in their contracts is 60, this is permissible provided he or she agrees to the age staying at 60.

Work beyond retirement

From 1 October, employers have a new duty to consider requests to work beyond compulsory retirement age.

If the practice wishes to retire an employee at the compulsory age, it must notify the employee in writing not more than 12 months and not less than six months before the intended date of retirement telling them that they have the right to request working beyond the retirement date.

If the practice does not want the staff member to do work beyond the retirement age, it must hold a meeting and provide a right of appeal.

Failure to take these compulsory steps could mean the employee can claim compensation. The existing statutory dismissal procedure will not apply to retirement dismissals as the duty to consider working beyond retirement replaces this.

The current upper age limit will be removed so that staff over 65 will be able to claim unfair dismissal.

Unfair dismissal

'Planned retirement' will not constitute unfair dismissal if it is on or after age 65 or lower retirement age where this is justified; if the employee has been notified of the retirement in writing at least six months in advance; if the duty to consider procedure has been followed and it is a genuine retirement.

If the practice does not comply with the above requirements, an employee can claim unfair dismissal. In some serious cases of non-compliance- for example, where staff are not informed properly, a retirement dismissal will be automatically unfair.

Default retirement age of 65 does not apply to partnerships. Any retirement age for GP partners will have to be justified on the grounds that no partner is treated less favourably on grounds of age than any other. The 'planned retirement' provisions do not apply to partners. Partnership retirement cannot be planned.

With dismissals unrelated to retirement - for example, for poor performance - employers will need to apply the normal statutory dismissal pro- cedures and the reason for dismissal should be very clear.

The employer will not be able to avoid the normal statutory dismissal requirements by applying the retirement procedures where the dismissal is actually a redundancy, or a dismissal on grounds of incompetence or misconduct.

Employee claims

Employees are likely to bring claims that the retirement was not a genuine one. To avoid claims that a genuine retirement was actually a dismissal in disguise it is imperative for practices to comply with the six months' notice minimum requirement.

Employees made redundant at any age will have the same entitlement to a redundancy payment. The basis of the calculation will be changed to remove some of the age-based provisions, but the 20-year service maximum when calculating the payment will remain.

Pensions

Many of the rules in pension schemes, including the NHS scheme, are age-based. The regulations will exempt most age-related pensions rules and operational procedures. It will also be possible for employers to offer employees a pension scheme different from the one contributed to by existing staff.

Compensation claims

Employment tribunals or courts can award financial compensation for well-founded claims of age discrimination, victimisation or harassment, including damages for injury to feelings.

If it complies with the default retirement age of 65, a compulsory retirement will not be age discrimination. However, it could amount to unfair dismissal if the practice fails to follow procedures to consider requests to work beyond retirement. Normal unfair dismissal compensation applies.

- Medical specialist solicitor Lynne Abbess is a partner at London firm Hempsons, www.hempsons.co.uk

WHAT PRACTICES NEED TO DO BEFORE 1 OCTOBER

- Familiarise themselves with the age discrimination regulations before 1 October 2006. ACAS (Advisory, Conciliation and Arbitration Service) has helpful 'Age and the Workplace' guides for employers and individuals which you can download at www.acas.org.uk.

- Review your employment procedures for recruitment, retirement, performance, dismissal and dealing with bullying and harassment, and change them to exclude anything that could be interpreted as age discrimination. Check employment contracts for staff handbook and employment benefits: any terms contravening the regulations will be declared void.

- Check retirement procedures to make sure they are compliant and implement a procedure for triggering the six months' notice requirement.

- Consider the proportion of staff in particular age groups. If you have avoided taking on people above or below particular ages in the past, you must be able to show justification for continuing to do this.

- Be consistent with provision of benefits and employment terms so to avoid any less favourable treatment of particular age groups. For example, do not offer relevant training only to younger and less experienced members of staff.

THE NEW REGULATIONS

- Remove the upper age limit for unfair dismissal and redundancy rights. Younger and older staff will have the same rights unless there is a genuine retirement.

- Allow pay and non-pay benefits to continue if they depend on length of service requirements of five years or less or if they reward loyalty and experience and motivate staff.

- Cover retirement rules.

- Remove the age limits for statutory sick, statutory maternity, statutory paternity and statutory adoption pay.

- Remove upper and lower age limits in the statutory redundancy scheme.

- Exempt many age-based rules in occupational pension schemes.

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