Age Discrimination

The Employment Equality (Age) Regulations 2009 (EER(A)R 2009) came into force on 1st October 2009 (although the parts relating to pension schemes will be delayed until at least 1st December 2009).  The Regulations expressly prohibit discrimination on the grounds of Age in the provision of and during Employment or Vocational Training.

The same definitions apply to the age regulations as apply to other forms of discrimination - direct, indirect, victimisation and harassment.  They also provide employers with the same sort of statutory defence if they can “prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description.” (Reg 25 (3) EE(A)R 2009).

The regulations also provide for an ‘objective justification’ defence.  In order to justify either directly or indirectly discriminating on the grounds of age and employer must show that the discriminatory effect of any age based practice is a proportionate means of achieving a legitimate aim.

In this context, proportionate means that the discriminatory effect of any age-based practice should be significantly outweighed by the importance and benefits of its legitimate aim, and the employer should have no reasonable alternative. The legitimate aim must correspond with a reasonable need on the part of the employer, and must in itself be valid.

 Who is Covered

The legislation covers all workers (not just employees), which includes the following:

• People applying for work
• Self-employed people
• Contract workers
• Office-holders
• Members of trade organisations
• Training providers
• Police officers

 Exceptions

There are specific exceptions contained within the Regulations which are outlined below:

• Genuine Occupational Requirements (GOR) (Reg 8)
• Statutory Authority (Reg 27)
• Positive Action (Reg 29)
• Life Assurance Cover (Reg 34)
• National Minimum Wage (Reg 31)
• Length of Service Benefits (Reg 32) (for benefits based on length of service where that service is less than 5 years)
• Enhanced Redundancy Payments (Reg 33)
• Retirement (Reg 30)  (65 has been set as the default retirement age. Retirements below this age must be objectively justified.

Areas Likely to be Affected

The new regulations are likely to impact on all of the following:

• Advertising Vacancies
• Application Forms & Job Specification Criteria
• Short listing
• Interviewing
• Promotion
• Performance Management
• Workplace Banter 
• Training
• Redundancy
• Wages, Salary & Benefits
• Unfair Dismissal

Click here to download further information on Age Discrimination and retirement.