Employment Equality Employment Equality (Age) Regulations, (Age) Regulations,

20062006Speaker’s NameSpeaker’s Name

Aims of talkAims of talk

To provide an overview of the new legislation To provide an overview of the new legislation which came into force on 1 October 2006which came into force on 1 October 2006

To provide an understanding of the key To provide an understanding of the key practical implications of the legislation for practical implications of the legislation for CCLRC managers and employees CCLRC managers and employees

Source: ACASSource: ACAS

Age Discrimination - Some FactsAge Discrimination - Some Facts

1 in 4 people aged 50-69 say they experience age 1 in 4 people aged 50-69 say they experience age discrimination when working or looking for workdiscrimination when working or looking for work

8 out of 10 young people believe age discrimination 8 out of 10 young people believe age discrimination is widespreadis widespread

Low levels of employment in over 50s is costing Low levels of employment in over 50s is costing economy between £19 and £31 billion a year.economy between £19 and £31 billion a year.

Age & Employment – Some Age & Employment – Some MisconceptionsMisconceptions

Older employees are more likely to take time Older employees are more likely to take time off for health reasonsoff for health reasons

Younger applicants have more energy, drive Younger applicants have more energy, drive and enthusiasmand enthusiasm

Older applicants are not up-to-date Older applicants are not up-to-date technicallytechnically

Younger people are more willing to work lateYounger people are more willing to work late Older people tend to be set in their ways and Older people tend to be set in their ways and

be less adaptablebe less adaptable

What do the Regulations cover?What do the Regulations cover?

They cover all aspects of employment, incl. :They cover all aspects of employment, incl. :• RecruitmentRecruitment• Terms and Conditions of EmploymentTerms and Conditions of Employment• Promotions Promotions • TransfersTransfers• DismissalsDismissals• TrainingTraining

They do not cover the provision of goods and They do not cover the provision of goods and servicesservices

The Regulations: HeadlinesThe Regulations: Headlines

The RegulationsThe Regulations:: Prohibit unjustified age discrimination in employment & Prohibit unjustified age discrimination in employment &

vocational trainingvocational training Require employers with a retirement age below the Require employers with a retirement age below the

national default age of 65 to justify or change itnational default age of 65 to justify or change it Impose a new duty on employers to consider an Impose a new duty on employers to consider an

employee’s request to continue working beyond their employee’s request to continue working beyond their retirement ageretirement age

Require employers to notify employees of their intended Require employers to notify employees of their intended retirement at least 6 months in advanceretirement at least 6 months in advance

Remove the upper age limits for unfair dismissal and Remove the upper age limits for unfair dismissal and redundancy pay redundancy pay

The Regulations make it unlawful The Regulations make it unlawful to:to:

Discriminate directlyDiscriminate directly – i.e. treat an employee less – i.e. treat an employee less favourably than others on the grounds of their age favourably than others on the grounds of their age (actual or perceived) – unless such treatment is (actual or perceived) – unless such treatment is ‘objectively justified’‘objectively justified’

Discriminate indirectlyDiscriminate indirectly – by applying a criterion, – by applying a criterion, provision or practice which disadvantages people of a provision or practice which disadvantages people of a particular age group - unless it can be objectively particular age group - unless it can be objectively justified.justified.

The Regulations Also Make It The Regulations Also Make It Unlawful To:Unlawful To:

Harass Harass someone for an age-related reasonsomeone for an age-related reason

VictimiseVictimise someone because they have made or intend to someone because they have made or intend to make a complaint or allegation, or have given or intend to make a complaint or allegation, or have given or intend to give evidence in relation to a complaint of discrimination give evidence in relation to a complaint of discrimination on the grounds of age.on the grounds of age.

Discriminate against someone, in certain circumstances, Discriminate against someone, in certain circumstances, after the working relationship has ended.after the working relationship has ended.

As with other forms of discrimination, CCLRC will not As with other forms of discrimination, CCLRC will not tolerate any of the above behaviour by its employeestolerate any of the above behaviour by its employees

Age Discrimination – ExceptionsAge Discrimination – Exceptions

Various exceptions to the Age Discrimination Various exceptions to the Age Discrimination

Two of the more relevant ones are:Two of the more relevant ones are:

• Positive actionPositive action

• Service-related pay and benefits – 5 year exceptionService-related pay and benefits – 5 year exception

So what do we mean by So what do we mean by ‘objective justification’?‘objective justification’?

Employers may lawfully treat people differently on grounds of their ageEmployers may lawfully treat people differently on grounds of their ageif they have an if they have an ‘objective justification’‘objective justification’..

Both direct and indirect discrimination will be objectively justified if:Both direct and indirect discrimination will be objectively justified if:

It pursues a legitimate aimIt pursues a legitimate aim

It is an appropriate and necessary means of achieving that aim.It is an appropriate and necessary means of achieving that aim.

ExampleExample: it might be necessary to fix a maximum age for a : it might be necessary to fix a maximum age for a recruitment to reflect the amount of training required for the post, or recruitment to reflect the amount of training required for the post, or the need for a reasonable period of employment prior to retirement.the need for a reasonable period of employment prior to retirement.

However, However, Harassment and Victimisation cannot be justified on Harassment and Victimisation cannot be justified on any groundsany grounds..

Is it ever legal to discriminate on Is it ever legal to discriminate on grounds of age?grounds of age?

There are limited circumstances when it is lawful to treat There are limited circumstances when it is lawful to treat people differently because of their age.people differently because of their age.

Most significantly for us, if there is an objective justification for Most significantly for us, if there is an objective justification for treating people differentlytreating people differently

There is also a specific exemption which allows employers to There is also a specific exemption which allows employers to refuse to recruit someone if they are older than or within six refuse to recruit someone if they are older than or within six months of the employer’s retirement age (i.e. 65 for CCLRC)months of the employer’s retirement age (i.e. 65 for CCLRC)

Where there is a Genuine Occupational Requirement (GOR) Where there is a Genuine Occupational Requirement (GOR) that a person must be a certain agethat a person must be a certain age

Recruitment (1)Recruitment (1) Recruitment paperwork- adverts, job descriptions and person Recruitment paperwork- adverts, job descriptions and person

specifications:specifications:

Educational qualificationsEducational qualifications: are the qualifications really necessary? : are the qualifications really necessary? Are they still current? Are there other ways of specifying the skills Are they still current? Are there other ways of specifying the skills level you require?level you require?

Experience:Experience: best to avoid references in adverts, job descriptions and best to avoid references in adverts, job descriptions and person specifications to “x years’ experience”person specifications to “x years’ experience”

• Such references may rule out younger people who have the skills but Such references may rule out younger people who have the skills but not had the opportunity to demonstrate them over the specified period not had the opportunity to demonstrate them over the specified period of timeof time

• If you do ask for a particular time requirement in an advert, you could If you do ask for a particular time requirement in an advert, you could be challenged and have to justify it in objective terms!be challenged and have to justify it in objective terms!

Recruitment (2)Recruitment (2) AdvertisingAdvertising: advertise in a way that will be accessible to a large audience : advertise in a way that will be accessible to a large audience

(unless taking justified ‘positive action’)(unless taking justified ‘positive action’)

• Avoid using language - such as ‘mature’, ‘young’, ‘energetic’ - that might Avoid using language - such as ‘mature’, ‘young’, ‘energetic’ - that might imply you would prefer someone of a certain age imply you would prefer someone of a certain age

• Beware of any hidden messages that may be present within any Beware of any hidden messages that may be present within any promotional literature, particularly in pictures (e.g. Graduate & Apprentice promotional literature, particularly in pictures (e.g. Graduate & Apprentice recruitment)recruitment)

ShortlistingShortlisting: ensure that all decisions about someone’s suitability for the : ensure that all decisions about someone’s suitability for the post are based on skills and abilities and not on age!post are based on skills and abilities and not on age!

InterviewingInterviewing:: avoid asking questions related to age, focus instead on the avoid asking questions related to age, focus instead on the competences required for the rolecompetences required for the role

Through EmploymentThrough Employment

Performance/Conduct and Attendance issuesPerformance/Conduct and Attendance issues• We need to make sure that all We need to make sure that all

performance/conduct and attendance issues are performance/conduct and attendance issues are tackled right up until an individual retires.tackled right up until an individual retires.

• We need to ensure that APR’s and L&D Plans We need to ensure that APR’s and L&D Plans are being used consistently regardless of the are being used consistently regardless of the individual’s age.individual’s age.

Access to L&D activities should not be limited by Access to L&D activities should not be limited by age, unless for positive action.age, unless for positive action.

Age RetirementAge Retirement The Regulations set a national default retirement age of 65 - which The Regulations set a national default retirement age of 65 - which

CCLRC has adopted as its new contractual retirement age.CCLRC has adopted as its new contractual retirement age.

This change does not affect individuals’ ‘pension age’ i.e. the age at This change does not affect individuals’ ‘pension age’ i.e. the age at which they can retire and take their full pension benefits.which they can retire and take their full pension benefits.

CCLRC employees who have a pension age of 60 (as most do) can CCLRC employees who have a pension age of 60 (as most do) can therefore choose to retire at any point between age 60 and 65, subject to therefore choose to retire at any point between age 60 and 65, subject to giving us 6 months’ notice.giving us 6 months’ notice.

Under the Regulations, employees gain the right to ask to continue Under the Regulations, employees gain the right to ask to continue working beyond their contractual retirement age (65). working beyond their contractual retirement age (65).

CCLRC has a ‘duty to consider’ such requests – but we do not have to CCLRC has a ‘duty to consider’ such requests – but we do not have to agree to them.agree to them.

The process CCLRC will follow in considering requests to stay on is set The process CCLRC will follow in considering requests to stay on is set out in Notice 45/2006.out in Notice 45/2006.

DismissalDismissal

The previous upper age limit for unfair dismissal The previous upper age limit for unfair dismissal claims and statutory redundancy payments has claims and statutory redundancy payments has been removed been removed

This gives older workers the same employment This gives older workers the same employment protection rights as younger workersprotection rights as younger workers

- unless there is a ‘genuine retirement’, using - unless there is a ‘genuine retirement’, using the ‘duty to consider’ procedure laid down in the the ‘duty to consider’ procedure laid down in the Regulations.Regulations.

Impact of Age Legislation on other Impact of Age Legislation on other CCLRC Conditions of EmploymentCCLRC Conditions of Employment

For the most part, the Regulations are not expected to For the most part, the Regulations are not expected to have a significant impact on existing terms and conditions have a significant impact on existing terms and conditions which are under CCLRC’s control which are under CCLRC’s control

However, they will impact on other aspects of CCLRC’s However, they will impact on other aspects of CCLRC’s conditions of employment outside our control (e.g. conditions of employment outside our control (e.g. redundancy procedures/payments and the pension redundancy procedures/payments and the pension schemes) schemes)

Some changes have recently been announced by Cabinet Some changes have recently been announced by Cabinet Office and Civil Service Pension Scheme/JSS Office and Civil Service Pension Scheme/JSS

……and further changes may well followand further changes may well follow

So what are the benefits of helping So what are the benefits of helping HR tackle Age Discrimination?HR tackle Age Discrimination?

As with other types of discrimination, avoiding or As with other types of discrimination, avoiding or tackling age discrimination will help us totackling age discrimination will help us to::

Attract & retain staff Attract & retain staff Maintain staff motivation and productivity Maintain staff motivation and productivity Enhance the reputation of CCLRC as a fair and Enhance the reputation of CCLRC as a fair and

responsible employerresponsible employer Minimise the risk of employees making discrimination Minimise the risk of employees making discrimination

claims to employment tribunals - where there is no claims to employment tribunals - where there is no ceiling for compensation in discrimination cases.ceiling for compensation in discrimination cases.