Employers Questions -
Age Discrimination and Retirement
Q1: I run a building
Company and I do not consider applications for jobs from anyone
over the age of 50. I have been told that you can have an age limit
if you have good reason and I think I have good reason because the
work is physically demanding and can be dangerous and therefore
I need fit and healthy workers. Is the age limit lawful?
Q2: I am
advertising for a senior role and I would like to ask for applicants
with at least 10 years experience, but this excludes younger workers.
Is this unlawful age discrimination?
Q3: I have
been told that I must remove the date of birth question from our
application forms because it is unlawful under the Age Regulations.
Is this right?
Q4: We use
an agency to handle all our staff recruitment and therefore I don’t
need to be concerned about age discrimination in our advertisements
or recruitment processes, do I?
Q5: Is there
still a maximum age limit on redundancy claims and are redundancy
payments still calculated according to age?
Q6: My Company
generally retires workers at the age of 60, is this lawful?
Q7: We have
an employee who is due to retire next year, I understand that he
may be allowed to work past his due retirement date, but is there
anything that I should consider before letting him do so?
Q8: My Company
has an employee who is 67; when should he retire?
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Please note, we cannot answer your specific legal queries by email.
If you require legal advice on this or any
other employment law issue, please contact Tony
Hyams-Parish or your usual contact in the employment team at
Rawlison Butler LLP.
This document is provided for information purposes
only and does not constitute legal advice. Professional legal advice
should be obtained before taking or refraining from taking any action
as a result of the contents of this document.
_____________________________________________________________________________________________________ Answers
to questions below, please click on the questions above to be directed to the
correct answer.
A1: The Employment Equality (Age)
Regulations 2006 prohibit direct and indirect discrimination, harassment
and victimisation on the grounds of age. The Regulations contain
an objective justification defence for both direct and indirect
discrimination claims. However, the test is strict and you must
show that the discriminatory practice is a proportionate way of
achieving a legitimate aim. A ‘legitimate aim’ must
be a real need of your Company, for example the need for a reasonable
period of employment before retirement or indeed, in your case,
health, welfare and safety of employees. Where you are satisfied
that you have a legitimate aim you must still show that your age
limit is a proportionate means of achieving that aim. This involves
considering whether there is any other, less discriminatory way,
of achieving that aim.
In your case the age limit of 50 is very
unlikely to be justified, because older workers can be just as fit
and healthy and capable of physically demanding work as younger
workers, in some cases more so. In any event your reasoning is unlikely
to apply to all jobs at the Company and will not be appropriate
for example for administrative off-site roles. You can still achieve
your aim of protecting on-site workers health and safety by accepting
applications from all ages, but conducting a physical assessment
of candidates to ensure that any successful applicant is physically
fit to perform the job.
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A2: The placing of an advert containing
a discriminatory statement is not itself unlawful, but it will be
unlawful for you to use discriminatory criteria when actually selecting
a successful applicant. If a potential candidate can show that an
age related requirement in an advert was used and prevented him/her
being considered for a position with the Company, this could give
him/her grounds for bringing a claim for indirect discrimination.
Words such as ‘senior’ and a
requirement for minimum experience may be unlawful on the basis
that they constitute indirect discrimination, because younger employees
will be unable to satisfy such requirements. As discussed above,
there is an objective justification defence to a claim of age discrimination.
Therefore, if the role you are advertising in fact needs a certain
amount of previous experience, you may be able to justify such a
requirement so that it is not unlawful. However, you must be prepared
to justify the requirement by showing a real need for the amount
of experience specified. You should try to concentrate on the skills
and qualifications required for the role, rather than merely asking
for a set period of experience. Generally it will be more difficult
to justify longer time periods in this regard and a requirement
for 10 years’ experience will very rarely be justified. In
general the word ‘senior’ should be avoided where possible
and instead you should again focus on the skills, qualifications
and experience required for the job.
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A3: It is quite common to ask for an applicant’s
date of birth on an application form. This practice is not unlawful
in itself, but you might consider removing this question from your
application form and only asking for this information once a candidate
has been selected and employed. There are of course a number of
legitimate reasons why you might need to know an employee’s
date of birth, such as determining when they may be entitled to
receive pension benefits, but in practice most of these needs will
only arise once a person has commenced employment.
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A4: No, you may be liable for the acts
of the employment agency you instruct. You should at the very least
check your employment agency’s recruitment policies and procedures
to ensure that they are compliant with your equality and diversity
policies.
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A5: The Age Regulations removed the lower
and upper age limits necessary to claim entitlement to redundancy
pay, as well as removing the upper age limit to bring a claim for
unfair dismissal. However, the qualifying period of two or more
years' service for a statutory redundancy payment has been preserved
and so too has the redundancy pay calculations based on age and
length of service and the 20 year cap on a redundancy payment. It
is noted, that there is no longer a tapering of redundancy payments
for employees between their 64th and 65th birthdays.
There is a specific exemption in the Regulations
which allows employers to provide enhanced redundancy pay based
on the age multipliers used by the statutory scheme.
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A6: The Age Regulations set a ‘default
retirement age’ of 65 which must apply, unless you can justify
a lower retirement age. In the absence of express provision the
default retirement age will apply. If you want to adopt a lower
retirement age you must be able to objectively justify it. An example
of objective justification may be health and safety, but it will
only be in exceptional circumstances that a lower retirement age
will be justified.
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A7: The Age Regulations introduced a ‘planned
retirement process’. All employers are now required to complete
this process with their employees in the 12 months leading up to
their retirement date. The process gives the employees the right
to request to continue working beyond their retirement date if they
wish to do so.
Provided that retirement is a genuine reason for
the termination of employment and the process is completed properly,
the retirement will be a fair dismissal.
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A8: You should consult with the employee
to agree an intended retirement date and then follow the ‘planned
retirement process’ under the Age Regulations in the 12 months
leading up to that date. Of course, as usual, you must consider
any request the employee makes to work beyond the planned retirement
date and if you agree to such a request you should set another ‘planned
retirement date’ for the future.
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