There are around 19 million people aged 50 and over in the UK, constituting 40% of the adult population, and the proportion of older people in the population continues to grow.
Regulations covering age discrimination came into force in October 2006. Unlike other forms of discrimination law, this applies to every single worker, as opposed to minority groups, and there is no upper or lower age limit.
Just as with sex, race and disability discrimination, both direct and indirect discrimination is outlawed and is only defensible if the employer is able to provide objective justification. However, it is likely that employers will only be able to justify themselves in relation to individual workers and their specific jobs, rather than on a macro level in terms of policy or practice that they may try to argue is necessary for their business as a whole.
The key aspects include the following and offending employers may be liable to uncapped penalties under the legislation:
- Retirement ages
The upper age limit for unfair dismissal and redundancy rights is removed. This means older workers have the same rights to claim unfair dismissal or to receive redundancy payment as younger workers. Employees have a statutory right to request working beyond compulsory retirement (65) which employers have a duty to consider. Employers must give workers at least 6 months notice of their retirement date.
- Recruitment
It is no longer legal to recruit or promote on the basis of age, and employers are entitled to recruit only on the basis of the applicant’s ability to do the job. Adverts are no longer able to specify age ranges for potential applicants.
- Pay and benefits
There are currently many benefits which are offered in relation to length of service and/or experience, such as annual leave, long service awards, etc. These benefits continue to be valid providing they are not linked to the employee’s age, and contracts will need to be reviewed accordingly.
- Calculation of payments and awards
There is no change in the way statutory redundancy payments and basic awards for unfair dismissal are calculated.
- Redundancy
Redundancy selection criteria are also affected. For example, the use of “last in first out” may be outlawed as younger workers are less likely to have built up significant length of service, thereby making this policy potentially discriminatory.
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