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Coming of Age

» Posted on: 25 January 2008
» Posted by: Oliver McCann
» Service area: Employment

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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.

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.

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
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