Legal services: Age discrimination

Positive action

Anything done in connection with giving persons of a particular age access to vocational training; or encouraging people of a particular age to use employment opportunities will be lawful if this is reasonably expected to prevent or compensate for disadvantages suffered by such people.

An example (provided by the DTI) would involve an Employer placing an advertisement only in a magazine for young people, because this age group is underrepresented in his business. This may encourage applications mainly from young people and as such may be indirect discrimination. However, these circumstances would fall under the positive action provision. It will be lawful if it reasonably appears to the Employer that this helps to compensate for a disadvantage suffered by people of this age.

Specific Issues

Briefly, the Regulations will:-

• ban age discrimination in terms of recruitment, promotion and training;
• introduce a default retirement age of 65 and require retirement ages below this to be objectively justified;

In the case of the Prison Service, the retirement age of 60 for Officers will require objective justification as being appropriate and necessary. The requirement for Officers to undertake Control and Restraint duties is likely to amount to adequate objective justification for this younger retirement age.

• remove the current age limit (65) for unfair dismissal and redundancy rights so that an Employee over that age who is dismissed can challenge his dismissal and/or obtain a redundancy payment;
• introduce a right for an Employee to request working beyond retirement age and a duty on Employers to consider that request;
• introduce a requirement for Employers to give at least 6 months’ notice to Employees about their intended retirement date so that individuals can better plan for retirement;
• allow pay and non-pay benefits to continue which depend on length of service requirements of 5 years or less, or which recognise and reward loyalty and experience to motivate staff.

As you will doubtless be aware, in the case of the Prison Service, Officers are entitled to an annual incremental rise in salary, followed by two long service awards. From 1 October 2006, incremental rises following the fifth year of service will be in breach of the new Regulations. At the time of writing, it is understood that the Prison Service is considering the introduction of a Job Evaluation Scheme as a means of avoiding the effect of the Regulations.

• remove the age limits for statutory sick pay, statutory maternity pay, statutory adoption pay and statutory paternity pay;
• remove the lower and upper age limits in the statutory redundancy scheme.

At present, because of the need for 2 years’ continuous employment before obtaining entitlement to a redundancy payment, a dismissed Employee below the age of 20 cannot be entitled to a redundancy payment. Furthermore, to be entitled to a redundancy payment at present, an Employee must be below the normal retiring age in the business for an Employee holding his position, providing that age is less than 65 and is the same for men and women; and in any other case the age of 65.

The new Scheme will therefore remove the upper and lower limits in the statutory Scheme but will leave the current age banded system in place for calculating the actual redundancy payments.

• Provide exemptions for many age-based rules in occupational pension schemes.

Conclusion

As the finalised Regulations have not been issued as yet, the exact impact of these provisions when implemented in the UK and applied by Employment Tribunals, remains to be seen. From an Employee’s perspective, the thrust of the new provisions are generally to be welcomed although it may be argued the Government has failed to go far enough in seeking to protect Employees against age discrimination.

The outcome of negotiations relating to annual incremental pay rises and the question of avoiding the Age Regulations in respect of the retirement age of 60 will be of particular relevance to POA Members and will doubtless be the subject of much debate in the coming months.

Roger Spence

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