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October 2007 marked the first anniversary
of the Employment Equality (Age) Regulations 2006 (“the
Regulations”) which, at the time, was heralded as the most
significant piece of legislation to be introduced for over 30 years.
So what has the impact been?
There were 972 age discrimination claims between October 2006 and
the end of March 2007. Figures suggest that approximately 200 claims
a month are now being lodged. This comes as no surprise as
statistics from the Employers Forum on Age suggests that 86% of
people are aware that it is illegal to discriminate on grounds of
age, with 16 million people last year witnessing Ageist practises at
work. Of concern is that over half of those surveyed did not realise
that the legislation covered anyone of any age, 33% believing
it related to only older people.
Already we have seen the publicised challenge by Heyday against the
National Default Retirement Age (“DRA”) of 65 which enables
employers’ to retire employees’ 65 or over without it being unlawful
as long as the retirement procedure under the regulations is
followed. A decision is due in 2009 which means that many employees’
forced to retire at 65 are lodging claims for Age Discrimination.
The Tribunals are staying those claims pending the outcome. However
there has been some guidance by the European Courts in a Spanish
case which held that the mandatory retirement age was justified
having regard to the social aim of promoting employment and reducing
unemployment.
Justified
A recent decision here in the UK has held that a law firms
retirement age of 65 for its Partners’ was objectively justified
having regard to, amongst other things, the need for the firm to be
able to offer advancement to younger solicitors in the practice.
The above claim was brought by a Partner, emphasising that the
Regulations are not just limited to employees. Indeed a former
partner of city law firm Freshfields brought a highly publicised
claim, potentially worth millions, in relation to changes made to
the firm’s pension provisions. Here the Firm won, justifying the
changes as necessary to mitigate the effect of it previous pension
provisions discriminating against their younger partners.
A local 75 year old school mini bus driver succeeded in a claim for
unfair dismissal when he was dismissed following concerns about a
deterioration in his driving capabilities. Prior to the Regulations
he could not bring a claim for age discrimination.
A 58 year old salesman succeeded in a claim for Age Discrimination
in Northern Ireland when he was turned down for a position which he
applied for. The Tribunal drew an inference from the job
advertisement which referred to “youthful enthusiasm”.
Employers’ must now follow a specified Retirement procedure to
retire their employees’ lawfully. Failure to do so will render the
dismissal automatically unfair and potentially unlawful due to age
discrimination.
Significant
It would be wrong to conclude that the Regulations have had little
impact, especially bearing in mind the significant number of cases
yet to be decided. The real impact is yet to be realised and the
previous 12 months has been the “calm before the storm”.
In the 12 months since the Age Regulations came in Taylors have
already advised on matters relating to Retirement procedures,
Service related benefits and allegations that redundancy criteria
discriminated against younger workers as one of the criteria took
into account length of service.
Age is now always an additional factor to be taken into account when
considering the risks that flow from a dismissal. Make no mistake,
employees’ and their legal advisers are alert to the Age Regulations
and will not hesitate to use the Age Regulations where possible to
maximise their outcome! Make sure you are one step ahead of them!
Taylors can:
- carry out a complete review of your Employment Terms and
Conditions to ensure compliance with all legislation
- provide an Employment Law helpline to help you through
internal employment issues such as disciplinaries, grievances
- obtain a quote for insurance to cover employment tribunal
awards and legal costs in defending claims
Copyright 2006 - 2010 Taylors Solicitors
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Coming
of Age