Age discrimination in the workplace first became unlawful in the UK in 2006, and practices cannot dismiss staff or refuse to hire individuals just because they have reached a certain age.
Under the Employment Equality (Age) Regulations four main types of discrimination apply:
- Direct - refusing to employ someone because they are too old or young, for example. This can include apparent age and actual age.
- Indirect - such as refusal to employ because a person has too many/few years service.
- Harassment - where unwanted behaviour is with the intention (or results in) violating the employee's dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment.
- Victimisation - where the employee receives different and less favourable treatment because, for example, they made a complaint about age discrimination.
Normal retirement age
A normal retirement age of 65 years old (or higher) is permissible, but the government has announced plans to increase this age. Lower retirement ages need to be justified.
Employers must inform the employee, in writing, at least six months before the normal retirement age that their employment will end. They also have a 'duty to consider' an employee's request to work beyond normal retirement age.
The employee must submit this request three to six months before the expected retirement date. The employer then has two weeks to inform the employee of the decision in writing. The employee can appeal, and if this appeal extends beyond the 'normal' retirement age, the employee remains in work until the appeal is completed.
If it is decided the employee can remain at work, a new contractual retirement date is set and the procedure is repeated, starting at least six months before that date.
- Martin Edwards is head of employment law at solicitors Mace & Jones, www.maceandjones.co.uk
Job adverts Focus on factual requirements of the post - not on descriptions like 'senior' or 'junior'.
Application forms Ask for date of birth in a separate diversity monitoring form. Avoid questions from which age can be inferred.
Interviews Make sure candidates are asked the same questions in the same order. Focus on requirements, tasks and competencies required.
Contracts of employment Check there are no age-discriminatory practices such as of employment-related benefits that may be more expensive to older employees.
Selection for redundancy Criteria need to be reasonable and implemented fairly. Selection should not lead to discrimination on age grounds.
Redundancy payments Payments that mirror, though are greater than, the statutory scheme are permitted. But there should be no increase in payments based on age or length of service that are not available to younger staff or those who have less service.