Legal Q&A: Consultation on age discrimination

Richard Linskell, partner, Dawsons Solicitors

Why is the Government proposing to introduce legislation on age discrimination?

Age discrimination has been a hot topic for some time. The Government is
committed to introducing legislation outlawing age discrimination under the
European Employment Framework Directive. This is also set against the
background of the Government’s need to deal with the ageing workforce and the
‘pensions timebomb’.

What is age discrimination and whom does it affect?

The proposals, which are due to start on 1 October 2006, will outlaw direct and
indirect age discrimination. Direct discrimination occurs when a decision is
made on the basis of a person’s actual or perceived age. Indirect
discrimination occurs when a policy or practice applies to everyone but
disadvantages certain groups (that is, younger or older people) unless there
are justifiable reasons. The legislation will apply to employers, providers of
vocational training and trade unions, professional associations and employers’

What are the Government’s main proposals?

The key proposals are as follows:

Compulsory retirement ages will be outlawed unless they are justified. The
Government is consulting on whether, in exceptional cases, employers should be
able to justify mandatory retirement ages and on whether there should be a
default retirement age of 70, after which no justification would be required.
There will also be no upper age limit on the right to claim unfair dismissal
– Decisions on recruitment, selection and promotion based on age, including
applying an age limit on recruitment, will be unlawful unless they can be
– Employers can continue to provide pay and non-pay benefits based on length of
service or experience, if it is justifiable
– In the calculation of the basic award for unfair dismissal and the statutory
redundancy payment, age would cease to be a factor, although 20 years’ service
would continue to be the maximum which could be taken into account. The
Government is consulting on when the right to a redundancy payment should

On what basis will using age as a factor be justified?

The Government is proposing specific aims for the legislation which would be
used in determining whether discrimination is justified. Those aims are:

Health, welfare and safety – for example, the protection of younger workers
– Facilitation of employment planning – for example, where the business has a
number of people approaching retirement age at the same time
– The particular training requirement of the post in question – the
Government’s cites as an example air traffic controllers, who need to have high
levels of health, fitness and concentration, and need to undergo extensive
– The need for a reasonable period of employment before retirement.

What will be the impact of this legislation?

Age discrimination legislation will have a profound impact on every decision
made by employers. Employers will need to consider whether any decision related
to employment adversely effects one age group or another. Employers and their
legal advisers will need to second guess what an employment tribunal might
consider to be justifiable.

What will be the impact on recruitment practices?

Although recruiting within particular age bands will not be outlawed, employers
will need to think carefully whether it is justifiable. For example, on
graduate recruitment programmes, it is unlikely to be justifiable to limit them
to people below a certain age when there may be significant numbers of mature
graduates. Equally, B&Q’s policy of specifically recruiting older workers
is unlikely to be justifiable. Employment tribunals will not be too impressed
with employers who limit recruitment to, say, those under 25 because they have a
young team, or to those over 35 because they want mature employees, as each
application would have to be justified on its own merits.

What will this mean in relation to older workers whose productivity is
declining due to their age?

Employers have often taken advantage of set retirement ages to allow someone
with declining performance due to their age to leave work with some dignity. It
is likely that, in future, employers will need to manage performance more
closely and, possibly, to dismiss older workers due to performance, obviously
after having gone through a fair procedure. This will add an enormous
additional burden onto employers and it is unlikely to be welcomed by those
subject to such procedures whose dignity may be harmed at the end of a long
working life.

Am I able to make any comments on the proposals?

The consultation lasts until 20 October 2003. The consultation documents are on
the DTI’s website at

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