Member Article

New Equality Laws in Employment

With Watson Burton LLP Law Firm

On 1 October 2006 the biggest single change to employment law in the last 30 years came into force. The changes have been introduced by the Employment Equality (Age) Regulations 2006 (“the Regulations”). The Regulations are aimed at protecting all age groups in any type of employment. In taking this step the UK now complies with the EU Equal Treatment Directive of 2000.

The key areas of protection relate to direct discrimination, indirect discrimination, victimisation and harassment. The new rules will affect recruitment, training, promotion, redundancy, retirement, pay and pension provisions.

Direct discrimination amounts to less favourable treatment on the grounds of an individual’s age. Indirect discrimination covers discrimination as a result of an employer applying a criteria, policy, rule or practice which has the effect of disadvantaging people of a particular age, i.e. a job application form requiring 15 years previous experience. For both types of discrimination there is a justification defence available, although it is narrowly construed.

To rely on this defence it must be shown that the action or behaviour was a proportionate means of achieving a legitimate aim. A “legitimate aim” includes, for example, business efficacy. “Proportionate” means that the discriminatory effect must be outweighed by the legitimate aim. There is no such defence available for victimisation or harassment. Victimisation relates to someone being treated less favourably because they have previously alleged a breach of the Regulations, brought proceedings or been involved in providing assistance with respect to a complaint of age discrimination. Harassment affects a person’s dignity and may involve an element of humiliation.

The Regulations have changed the retirement age to 65. However, as of 1 April 2007, a fair retirement procedure will be introduced so that those employees will have the right to request to stay on in their jobs. There are transitional provisions contained in the Regulations to deal with employees reaching 65 between 1 October 2006 and 31 March 2006. Although employers are under no obligation to retain these employees, the correct procedures must be followed. In addition, people over 65 will for the first time be able to receive a redundancy payment.

The result of all this new legislation is that anyone who feels they have suffered less favourable treatment because of their age can bring a claim at the employment tribunal. Employers should be aware that there is no cap to the level of compensation that can be awarded in an age discrimination claim.

To avoid being part of the flood of litigation that many predict will follow the introduction of the Regulations, now is the time for employers to implement the necessary procedures and systems.

If you have any queries in relation to this article, or any other employment law matter, please contact Sarah Barratt at Watson Burton LLP (email: sarah.barratt@watsonburton.com).

This was posted in Bdaily's Members' News section by Ruth Mitchell .