Q Are employees currently protected from age discrimination?
A Although a Code of Practice on Age Diversity in Employment was issued in 1999, and updated in 2002, this was designed to advocate good practice and does not have any statutory force. However, regulations containing the UK Government’s provisions to implement the requirements relating to age of the EU Framework Directive for Equal Treatment must be in force by 2 December 2006.
The Government has indicated it intends to introduce them on 1 October 2006 in line with its new set commencement dates for employment legislation.
Some age discrimination may constitute indirect sex or race discrimination if it has an indirect adverse impact on one or other sex or a particular racial group. Indirect sex or race discrimination will not be unlawful if it can be objectively justified.
Q What are the requirements of the directive in relation to age?
A Directive 2000/78/EC requires member states to implement legislation that prohibits, in the areas of employment and vocational training, direct and indirect discrimination and harassment on the grounds of age. The legislation must also provide protection from victimisation for raising a complaint of discrimination.
The directive does, however, permit member states’ implementing legislation to permit practices that would otherwise constitute direct discrimination, so long as they are objectively justified by reference to specific aims, and necessary and appropriate.
Q Are draft age discrimination regulations available?
A Not yet. The Government’s original timetable, as set out in its consultation paper Equality and Diversity: Age Matters, was that it would consult on draft regulations in the first half of 2004, with the aim of laying the legislation before Parliament by the end of 2004. This would have given employers almost two years to prepare for the new regulations once their final form was known.
However, this timetable slipped – reportedly because of a dispute over whether the new laws should permit mandatory retirement ages. In December 2004, the Government announced that it now intends to consult on draft age discrimination regulations in the summer of 2005. Its intention is still to bring the legislation into force on 1 October 2006.
Q Will employers be able to retain a mandatory retirement age when the new age discrimination legislation is in force?
A The Government announced in December 2004 that the age discrimination legislation will provide for a national default retirement age of 65. The default retirement age will not be a compulsory retirement age, and employees will be able to work beyond it wherever this is agreed with their employer. There will be a right to request to work beyond the default retirement age, and this is to be based on the right for parents of young children to request flexible working.
The Government also intends to review the default retirement age five years after implementation. If the evidence suggests it is no longer needed, it will be abolished. Under the legislation, employers will be able to set a retirement age under 65 for all or part of their workforce only if this is objectively justified by reference to the particular factual situation affecting the group of workers.
Q Will the upper age limit for bringing a claim of unfair dismissal be affected?
A At present, under the Employment Rights Act 1996, section 109, employees who have reached their employer’s normal retirement age, or 65 where there is no such age, are barred from bringing a claim of unfair dismissal. The Government intends to change this rule so that employees will be able to bring unfair dismissal claims at any age.
Having reached the national default retirement age of 65, or a justifiable mandatory retirement age imposed by the employer, would be a potentially fair reason for dismissal. However, employees dismissed after the relevant age would be able to pursue a claim for unfair dismissal if they were dismissed for a reason other than retirement, or where the procedure for dismissal on the grounds of retirement was unfair.