What are the 2006 Regulations?

The Employment Equality (Age) Regulation 2006 came into force on 1 October 2006 and make discrimination and harassment on grounds of age unlawful.

Why do we need the Age Regulations?

In line with the existing anti-discrimination legislation in relation to race, sex, disability, gender reassignment, sexual orientation and religion and belief, the Age Regulations have been introduced to encourage diversity in the work place and to prevent discrimination and harassment on grounds of age.

What can I not do under the Age Regulations?

Under the Age Regulations, five acts are now unlawful:

1. Direct discrimination - where a person is treated less favourably on grounds of his or her age or apparent age (assumed or perceived, even if that is wrong) than another person was treated, or would have been treated, and where there is no objective justification for doing so.

2. Indirect discrimination - where selection criteria, policies, benefits, employment rules or other practices, which are applied to all employees, disadvantage people within certain age groups, and where there is no objective justification for doing so.

3. Harassment - where a person is subjected to unwanted conduct on grounds of age, which had the purpose or effect of violating that person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive working environment.

4. Instructions to discriminate - where a person is instructed to commit an unlawful act of age discrimination.

5. Victimisation - where a person is treated less favourably because he or she has made an allegation that age discrimination has taken place, presented an age discrimination claim to an Employment Tribunal or acted as a witness in an age discrimination case.

When might I be directly discriminating?

It is unlawful for you not to promote an otherwise capable employee solely on the grounds that you think he is "too old" or "past it". regardless of the persons real or perceived age. Both are covered by the Age Regulations.

When might I be indirectly discriminating?

For Example, a policy that requires all employees to have a clean driving licence for five years, would be unlawful indirect discrimination. While such a policy would apply to all employees equally, it would follow that younger employees could be indirectly disadvantaged as a result.

Can I ever discriminate on grounds of age?

You can seek to defend a direct or indirect discrimination claim if you can establish that there was "objective justification". To be objectively justified, the act of discrimination must be a proportionate means of achieving a legitimate aim (for example, protecting the health and welfare of the individual). The test for objective justification is not an easy one to meet and it will be necessary for you to provide real evidence to support your claim.

Can I still award benefits based on long term service?

Yes. The Age Regulations provide for an exemption in relation to the practice of requiring a certain length of service before a particular benefit, such as additional holiday days, is awarded. Any benefit you award which is subject to five years' service or less is lawful. Where length of service of more than 5 years is used, this is lawful if you can show that it is to reflect levels of experience, or to reward loyalty or to motivate employees. Alternatively, you may be able to rely on some other "objective justification".

What do I need to do in relation to retirement?

The Age Regulations introduce a default retirement age of 65 which allow for the "fair" retirement of employees of 65 or over. To be classed as a "fair" retirement, you must inform your employee in writing of their intended retirement date and of their right to request to continue to work beyond that date, between six and twelve months in advance of the intended retirement date.You must then meet with your employee to consider the request and inform them of your decision in writing. A failure to comply with the procedure means you will be liable for up to eight weeks' pay, and if you still fail to do this in the last two weeks before retirement, it is an automatically unfair dismissal. If you wish to impose a retirement age which is below 65, you must be able to objectively justify such a policy (see above). This is likely to prove difficult.

Is it only existing employees who are protected under the Age Regulations?

No. In addition to your existing employees, the Age Regulations also apply to job applicants and your ex-employees.

How are existing employees protected?

Existing employees are protected in relation to the terms on which they are employed, the opportunities for promotion, transfer or training, the availability of benefits and grounds for dismissal. In addition, existing employees are protected against age-related harassment in the work place.

How are job applicants protected

In relation to job applicants, employers must avoid specifying particular job requirements which may impact upon age. For example, you should avoid wording such as "dynamic professional required - ideal first job". During any assessment or interview, you should focus on the applicant's competencies and not what you might expect them to have achieved by reference to their age.

How are ex-employees protected?

In a situation where an ex-employee is subjected to a detriment or for reasons relating to age, this too would be unlawful under the Age Regulations. For example, if you refuse to provide a reference to an ex-employee on the basis that they raised an age-related complaint while in your employment, this would constitute unlawful discrimination.

What should I consider and watch out for?

You need to keep an eye out for behaviour, comments, actions or omissions which may be in breach of the new Age Regulations.

In relation to younger people, things to watch out for might include:

•Talking down to younger people in a patronising fashion;

•Not promoting a younger person on the basis that they are too young

•Making junior staff do all the menial tasks;

•Resenting younger people's ability to "learn new tricks"; and

•Stereotyping young employees as being less reliable or responsible and more likely to put their social life before work..

In relation to older people, you should avoid:

•Advertising for school-leavers or suggesting that a role would be an "ideal first job";

•Considering job applicants likely to be too experienced or

over-qualified for a role simply because of their age;

•Devoting less attention to developing the skills of older employees on the basis that they are unable to learn "new tricks"; and

•Ageist language and comments such as "you are showing your age I see".

What are the consequences of my breaching the Age Regulations?

Creating a discrimination and harassment free environment is not a matter of being "nice" or "politically correct", it is a legal necessity, and if you get it wrong, the consequences can be significant. If an Employment Tribunal upholds a complaint of age discrimination against you it can make a declaration that you have violated the individual's rights and can make a recommendation that you take steps to prevent or reduce the adverse effects of your discrimination.

Can I be ordered to pay compensation?

Yes. Employees can bring unfair dismissal claims where the duty to consider a request to work past retirement has not been complied with in the last two weeks before retirement. In addition, where there has been discrimination, the tribunal can make an order requiring you to pay compensation to the individual concerned. While the adverse effects of being branded a "discriminatory employer" should not be underestimated, it is arguably the financial penalties which will be your greatest concern. It is likely that, as with other forms of discrimination claims, compensation will be the most common form of remedy in age discrimination cases and the amount of compensation that can be awarded is unlimited.

Am I liable if one of my employees breaches the Age Regulations?

Yes. Any act of age discrimination carried out by someone while employed by you will be treated as having been done by you as well as by the individual. This will be the case whether or not the discriminatory act was done with your knowledge or approval. In addition, if you knowingly aid another person to do an act made unlawful by the Age Regulations, you shall be treated as having done the unlawful act yourself. If you deliberately make a misleading statement to an employee as to get them to breach the Age Regulations, that is a criminal offence.

Will I notices any changes as a result of the Age Regulations?

Yes. The Age Regulations will undoubtedly result in a radical change to the long established practices of employers and it is predicted that over half of all Employment Tribunal cases will contain some element of age discrimination in the future. Indeed, a survey by the Employment Forum on Age found that 40 per cent of those UK employers questioned believed that the Age Regulations will have a greater impact than sex and race discrimination laws and 75 per cent believed that people of all ages will benefit from the new age discrimination laws.

What do I need to do?

It is important that you are fully aware of the implications of the Age Regulations and the significant consequences of failing to comply with them. Amend your equality policies to include reference to age and ensure that all your employees, especially those in managerial roles, are made aware of the Age Regulations.

Jonathan Exten-Wright and Paul Matthews

Jonathan Exten-Wright is a Partner and Paul Matthews is a Trainee Solicitor in the employment department of international law firm DLA Piper UK LLP.

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