Legal Q&A Age regulations

JOURNAL : Personnel Today
SUBJECT : Legal Q&A Age regulations
AUTHOR : no job ticket found
SECTION : no job ticket found
ISSUE DATE : 06/06/06
PAGE NUMBER : 20
COPYRIGHT : Free Reuse

HEADLINE: Legal Q&A Age regulations

Q Can we still run a graduate recruitment scheme after the ageism laws come into force on 1 October 2006?
A Such schemes will not in themselves be unlawful, but clearly criteria for entry to the scheme may discriminate (either directly or indirectly) against candidates on grounds of age. For example, a requirement that an entrant be no older than 25, or have no more than three years’ postgraduate experience, would indirectly discriminate against older workers and would have to be objectively justified.

Employers will also have to be careful about restricting their recruitment process to the university ‘milk rounds’, as the majority of students who attend these events are young graduates. The Acas guidance recommends that employers enhance any milk round programme with a broader recruitment strategy, using other avenues to capture a wider pool of applicants of differing ages.

Q How much detail do we need to provide when informing an employee of our decision to reject their application to work beyond the intended retirement date?

A There is no provision governing how much information employers need to provide. The age regulations state that where the decision is to refuse an employee’s request, the employer should confirm its intention to retire the employee, and set out the date on which the dismissal will take effect, together with details of the appeal procedure. The age regulations do not require the employer to expressly state its reasons for turning down the request, although clearly from an employee relations point of view, it may be difficult to get away with saying “no” and nothing more.

The Acas guide provides that: “Giving reasons and a more detailed explanation of your retirement policy may enable the employee to leave with dignity and respect and help you maintain good workplace relationships with other employees.” But this does not mean that, legally, you have to do it.

Q If we cannot reach agreement with an employee concerning a request to work beyond the intended retirement date, what action could they take?

A The aim of the legislation is to encourage dialogue between employers and employees. An employee will only be able to bring a complaint in a tribunal in limited circumstances. They will be able to bring an unfair dismissal claim, although if it is a genuine retirement and the employer has complied with the duty to consider procedure, then their claim will be unsuccessful.

Depending on the age at which the employee is retired (ie, if below 65) they may be able to bring a complaint of unlawful discrimination under the age regulations.

In addition, an employee will be entitled to up to eight weeks’ pay if their employer fails to inform them of their intended retirement date and of their right to request to continue working at least six months before the date of dismissal.

Unlike the Flexible Working Regulations, a tribunal will not have the power to order an employer to reconsider a request.

Q Will we have to monitor the age profile of our workforce?

A There is nothing in the age regulations that requires employers to obtain this information, either from their existing workforce or from job applicants. Having said that, it may help if you collate such information, as it will not only assist you when drafting policies and procedures, but it will also help you understand the needs of your workforce and whether or not particular age groups are under-represented in the workforce.

The collection of such data may also assist you if a claim of discrimination is brought against your organisation since the information would help to demonstrate its commitment to ensuring genuine equality of opportunity, and permit you to respond more fully to any questionnaires.
If you do decide to obtain such information, consider how you are going to collect it. If you already carry out other forms of monitoring, eg, on sex and ethnic origin, it may be easy to include questions about age. Make clear to your employees the reasons for collecting such data and how it is going to be used.

To achieve the full commitment of all concerned, it is normally advisable to discuss the chosen method, the reasons for collecting such data, and how it will be used with trade union representatives or employee representatives. Clearly, you should ensure that such information is only obtained for the purposes of monitoring alone, and is protected from unnecessary disclosure and other misuse.

For the full age regulations, go to www.dti.gov.uk/er/equality/age.htm

By Sue Nickson, international head of employment, Hammonds



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