The long awaited age discrimination law (Employment Equality (Age) Regulations) came into effect on October 1st 2006.
As with already existing discrimination legislation, direct and indirect discrimination is outlawed in a wide variety of situations such as employment, training etc. Harassment and victimisation is also outlawed. To this extent, the new legislation is a welcome addition in the protection of workers' rights.
However, as with much legislation in this area, process has once again won out over substance. As long as an employer follows the right procedures, a carriage and horses can be driven through rights that the legislation intended to bestow on older workers.
Does the law actually give workers more rights, or just impose more hurdles for savvy employers to overcome? The answer to that is often yes. Older workers beyond the age of retirement who manage to stay on will then be largely protected by the age discrimination legislation. Hard luck however if your employer remembers to the things demanded of him by the legislation in order to dismiss you on your 65th birthday. It will be all over apart from the ceremony and the gold watch.
The legislation was supposed to outlaw unfair dismissal due to age, but MRA's are blatantly unfair when the spirit of the legislation is considered. Similarly unfair and discriminatory terms and conditions for older and younger workers were meant to be outlawed.
The 'Right To Ask' of an employee, to remain working past the normal retiring age is a case in point. It's not much of a right, and there is no remedy if the employer simply refuses, other than an 'appeal' to the employer.
Will it be the case, as with much other legislation, that the large employer, the one with a specialist legal team, will be able to run rings round the various aspects of the legislation, leaving only the poor small employer to fall foul of procedure whilst the real rogues get away with evading their responsibilities?
It can be argued that this is indeed the case with the new legislation. For example, those employers who wish to retire older employees at 65 can under Regulation 30 quite easily do so.
It will however be an obtuse employer, small or otherwise, who intends to dismiss his employee who is approaching 65years, and who doesn't manage to get around to doing so until after 2 weeks before the 'normal' retirement age. Not much of a hurdle there for an employer to fall at.
This central weakness of the legislation, Mandatory Retirement Ages (MRAs) which allows employers to force workers into retirement is being challenged by Heyday, and will be subject to judicial review in December. The judicial review will mean the High Court scrutinising the legality of the Employment Equality (Age) Regulations (2006) and deciding whether they potentially contravene the European Equal Treatment Directive by leaving people over 65 without the right to work.
As is the case with the Dismissal and Disciplinary procedures, employers just have to waste a bit of everybody's time going through the motions by observing the retirement procedure in Schedule 6 of the Regulations. For some reason this does not apply to agency workers. If the employer wishes to dispense with their services without risking a tribunal claim for discrimination on the grounds of age, the decision will need to be 'objectively' justified.
For example, direct discrimination will be lawful if the treatment in question is shown to be a 'proportionate means of achieving a legitimate aim'. Tribunals will hopefully not treat the question of justification lightly, as the Regulations' guiding principle being that any form of direct age discrimination is unlawful and will only be permitted exceptionally where there is a very good reason such as in the case of training, that there should be a reasonable period before retirement, or for health and safety reasons. That it will be cheaper to discriminate than to not discriminate will not amount to a justification of discrimination. According to Acas however, costs can be taken into account. 'Economic factors such as business needs and efficiency' might be legitimate justification for discriminating with insurance or private health care arrangements for example.
For those employees who have managed to stay on after they have reached 65 years of age they will now be able to claim unfair dismissal and redundancy payments, and harassment or victimisation of workers because of their age will now be illegal.
For some reason, unlike the case with other discrimination legislation, discriminatory advertisements are not forbidden. Such advertisements or even recruitment practices, such as only advertising posts in magazines aimed at younger people, could however be used as evidence of the intention to discriminate. Likewise with questions or job specification on application forms. These could be useful evidence of such a discriminatory intention.
The legislation recently introduced is something of a mixed bag. Although there are many positive aspects to the age discrimination legislation, including the necessity of employers to revise much of their employment practices, from recruitment to retirement, an opportunity to outlaw age discrimination in all its forms has been wasted. The legislation will in all probability lead to many tribunal claims, but will in reality in its present form not be of much practical use to those older workers nearing retirement, for whom it was originally mainly intended.
© Workrep 23 / 10 / 2006