UK: Age Discrimination

We have now held two workshops, both of which were oversubscribed and we had to relax our normal restrictions on workshop numbers on each occasion.

If you attended our workshops, then we hope you are already working on updating your retirement procedures. If not, then please turn now to page 2 where Sejal Raja will outline the issues you should be looking at.

One of the questions raised at our workshops was whether one can identify general principles in the new regulations given the mass of detailed exceptions. Here is our attempt.

First, the legislation is designed to protect everybody under age 65 from discrimination on the grounds of age. You may have assumed that the regulations are intended to protect those at the older end of the spectrum. This is wrong, you could find yourself discriminating against a younger person on grounds of age just as easily.

What happens at age 65? (Actually protection reduces at age 641/2 but most commentators focus on age 65). The underlying principle is that protection continues generally, whatever your age, but there is some reduction at 65. So the over 65 year olds could suffer discrimination in that :

• They can be made to retire against their wishes.

• They can be rejected on a new job application on the basis of age.

However, if the sixty fiver is in employment, then he or she has to be offered the same terms as their younger colleagues even if these cost more (although there may be limits if cost is significant). This creates the occasional inconsistency, for example an internal candidate for a new post could not be rejected on the basis of age yet an external candidate could.

The over 65 year old will now be entitled to redundancy and possible unfair dismissal payments but as long as retirement procedures are correctly followed, these can be avoided. The procedure is tortuous, and will require care to be taken by HR managers.

What do you do if you currently have a retirement age of 60? Can you force people to retire? The answer is "probably not". If someone is forced to retire at age 61 but not at age 59, there is direct discrimination. Can this be justified? There must be very few (if any) jobs where the difference between age 59 and 61 is vital, or where health is an issue which could not be covered by a medical check. If your organisation has a retirement age of 60, you should be thinking about an increase to age 65.

Do the changes stop anyone retiring earlier and taking their pension earlier? Answer – no, and if you are lucky enough to have a good pension available at an earlier date, then there will be nothing to stop you retiring as you have always planned.

© RadcliffesLeBrasseur

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