age discrimination - frequently asked questions

Another new law?  What’s this one all about?  

On 1 October 2006, new regulations come into effect outlawing age discrimination.  The Employment Equality (Age) Regulations 2006 (“the Regulations”) prohibit all forms of age discrimination at work, in vocational training, in further and higher education and by pension schemes.  

We do not have anyone over the age of 45 in our organisation, so I don’t need to worry do I? 

The Regulations apply to the recruitment of workers as well as the actual employment relationship. This could be a problem if the organisation does not make its vacancies accessible to older workers for example by the way in which vacancies are advertised.  Sifting out candidates on the basis that they “might not fit in” to a “youthful” culture could amount to discrimination against older candidates.  

So this is employment protection for old people is it?  

Actually, no.  The Regulations apply to people of all ages, it is not just older workers who will be protected.  Any discrimination against a worker on grounds of age will be covered.  For example, a worker who is refused a job because they are “too young” will have the same rights as a worker who is refused a job because they are “too old”.  

We have a policy of increasing employees’ entitlement to annual leave in line with their length of service, can we still do this?  

Benefits that increase in line with service of up to 5 years are expressly permitted by the Regulations.   Benefits that increase in line with time served in excess of 5 years may amount to discrimination against younger workers unless it is reasonably apparent that this would fulfil a business need (such as a clear improvement in loyalty or motivation as a result of the increased benefit).  

Our health insurance does not cover employees over the age of 60.  Do we have to change this as we don’t want our costs to increase as a result of covering employees over that age?

You may have no choice but to bear this additional cost.  Increased cost alone will not amount to objective justification for ending insurance cover at a particular age.    Although the insurance industry is not covered directly by the Regulations, it is anticipated that insurance providers will react competitively to secure business as a result of the increased obligations on businesses.  

What about self-employed staff?  

Non-employees are also protected under the Regulations.  Any person who works under a “contract personally to do any work” will be covered by the legislation.  

So if we make sure that age is not a barrier to anyone working in our business, is that enough?  

That is an excellent start, but it will also be necessary to ensure that age is not a barrier to benefits, promotion or training.   In addition, businesses need to protect workers against harassment by their fellow workers on grounds of age. 

By way of example, a young male employee is subjected to “office banter” in relation to his age such as: “bet you don’t even have to shave every day” or “how can you possibly know about the real world when you’re only just out of short trousers?”.  If these comments are unwelcome and makes the recipient feel uncomfortable, then this could amount to harassment.  

Anything else?  

Just two last important points on retirement.

A normal retirement age of under 65 will generally be discriminatory, unless there is a compelling reason for a lower age.

Every employee is entitled to ask to work beyond normal retirement age and there is a compulsory statutory procedure that employers must follow with each employee approaching retirement.  This requires an employer to take action at least 6 months before the retirement age.