With the new age discrimination regulations becoming law on 1st October 2006, it would be instructive to see how these will impact a number of workplace issues.
To briefly recap, these regulations will apply to employees of all ages and they will cover both employment and vocational training. Compulsory retirement under the age of 65 becomes unlawful unless objectively justified. Employees will have the right to request to work beyond 65 and employers will have a duty to consider their request. Occupational pension schemes are covered by the regulations but state pensions are not affected. Employers would do well to carry out an age audit of their employees to identify potential retirements and to obtain an accurate profile of the current workforce.
For a retirement to be termed as ‘fair’, the employees must be informed of their intended retirement date and also about their right to request to continue working beyond this date, at least 6 months before but no more than 12 months in advance of this date. There is an obligation on employers to give due consideration to any such request but they are entitled to refuse the request without giving a reason for the decision. It is important to take advice on any refusals so that any potential discrimination issues can be identified beforehand. Requests by employees to continue working must be made in writing no less than 3 months before the intended retirement date.
The employer must meet with the employee to discuss his request within a reasonable period of time. The employee has a right to be accompanied by a colleague or a trade union representative and this right also applies to any subsequent appeal. It is important that the employer avoid making stereotypical assumptions about the capabilities of the employee. Failure by an employer to follow the correct procedures will render the dismissal unfair. Employers need to take note that any recruitment should also be free of age discrimination. Recruitment decisions should be based on the skills required for the job. Producing a job description that outlines the duties required to be performed in a particular job and a job specification that outlines the skills, knowledge and experience required to carry out that job is invaluable.
All references to age or length of experience should be avoided. Age or date of birth should be removed from the application form and employers should ensure that if they ask for specific qualifications they are not disadvantaging applicants of different ages. However, it is still acceptable for employers to include date of birth on their new starter forms.
Advertisements should reach a wide audience and not be restricted to publications read largely by a certain age group. Language that could imply age group preferences should be avoided. Short listings should be based on skills and ability and it would be advisable to check the process at this point to ensure discrimination free recruitment and processes. Interviews should preferably be carried out by more than one person and any questions or comments relating to age should be avoided. All decisions should be documented and monitored.