The Employment Equality (Age) Regulations 2006 - Age Discrimination

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These Regulations have now been replaced by the Equality Act 2010

The Regulations came into force on 1st October 2006.

The Regulations apply to all employment and vocational training (employees, prospective employees and trainees).
 
It is unlawful to discriminate, harass or victimise job applicants, employees or trainees on the grounds of age (young or old).
 
Direct discrimination occurs where the employer treats a job applicant / employee / trainee less favourably than he treats or would treat other persons unless he can objectively justify that treatment. It includes discrimination based on apparent age whether or not that is in fact the correct age.
 
Indirect discrimination occurs where the employer applies a provision, criterion or practice which puts persons of a particular age group at a particular disadvantage and they suffer disadvantage as a result.
 
Discrimination by way of victimisation occurs if the employer treats an job applicant / employee / trainee less favourably because of something they have done under or in connection with the Regulations (e.g. supporting a fellow worker who has brought a claim for age discrimination).
 
If an employer gives instructions to an employee to discriminate against another employee and those instructions are not carried out and that employee is then subjected to less favourable treatment, this will still constitute discrimination on the grounds of age.
 
Harassment occurs if the employee's conduct has the purpose or effect of violating the job applicant / employee / trainee's dignity or creating an offensive environment for him.
 
Retirement becomes a potentially fair reason for dismissal under S.98 Employment Rights Act 1996. Schedule 6 paragraph 2 of the Regulations set out a procedure to be followed prior to retirement, (at least six months prior to dismissal, but no more than 1 year prior to the dismissal). The employer should notify the employee of the date on which he intends that employee should retire and inform the employee that he has a right to request work beyond retirement age.
 
Please Note
Schedule 6 has now been repealed by the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011. These regulations also clarify that it is not an age contravention for an employer to offer access to insurance benefits until an employee reaches 65 or the state pensionable age, if greater. And then to subsequently withdraw these benefits once the employee reaches this age.
 
The normal statutory grievance and disciplinary procedures do not apply in relation to a dismissal for reasons of retirement. Where a dismissal is found to be unfair an Employment Tribunal can award up to 4 weeks pay to the employee.
 
It may not be unlawful for an employer to discriminate against a job applicant where at the time of the application the applicant is over the employer's normal retirement age. Such discrimination is also not unlawful if the applicant will reach the employees' normal retirement age within six months of the application for the job. The employees' normal retirement age for these purposes must be "objectively justified". However, an employee can challenge the employer's justified retirement age in an employment tribunal.
 
It is permissible to treat job applicants differently on the grounds of age if the job requires a characteristic related to age and this is a genuine occupational requirement. This exception also applies when promoting, transferring or training persons for a post.
 
The lower age limit requirement for calculating the period of continuous employment for unfair dismissal and redundancy claims is removed.
 
The upper age limit for unfair dismissal and redundancy claims is removed (unless there is a genuine retirement).
 
The tapering of the basic award for unfair dismissal and redundancy after the age of 64 is removed.
 
The normal one year requirement for a claim of unfair dismissal will not apply if the reason for the dismissal is because the employee exercised his right to be accompanied to a meeting to consider his request not to be retired, or that the employee accompanied or sought to accompany another employee to such a meeting.
 
The Regulations exclude the right to a redundancy payment in certain circumstances where the employee is also entitled to claim a pension
 
The upper and lower age limits for Statutory Sick Pay, Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay are removed.
 
Regulation 12(2)(a) of the National Minimum Wage Regulations 1999 is revoked, so that apprentices who are within the first 12 months of their apprenticeship do not qualify for the national minimum wage simply because they reach the age of 26. There will be transitional provisions for the coming into effect of this.
 
Workers who have reached the age of 22 will qualify for the single hourly rate for the national minimum wage and not the lower hourly rate as currently.
 
It will still allow pay and non-pay benefits which are based on length of service (5 years or less) which recognise and reward loyalty and experience and motivate staff. If the length of service requirement is in excess of 5 years the employee must show it fulfils a business need in which case the Regulations set out how an employer must calculate length of service. (Either by calculating the length of time workers have been working for him doing work at or above a particular level or calculate the length of time they have been working for him in total.)
 
Many age-based rules in occupational pension schemes will be exempted from the Regulations. However, it is still unlawful for trustees and managers of an occupational pension scheme to discriminate against a member or a prospective member of the scheme or harass such a member.
 
The Regulations also apply to employment agencies in relation to how they provide their services, institutions of further and higher education in relation to their students, partnerships, police officers, office holders, contract workers, trade organisations and qualification bodies.
 
The calculation of redundancy payments which is based on age, length of service and weekly pay continues to be lawful if the statutory table under the Employments Rights Act 1996 is used. However, employees making enhanced redundancy pay could fall foul of the Regulations. Regulation 33 therefore sets out a suggested calculation to be used in such circumstances.
 
Life assurance cover provided by employers for workers who have had to retire early on grounds of ill health are not affected by the Regulations even if such cover is only offered to employees under the age of 65.

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