A new age for employers

“MagicMags
Limited has a requirement that everyone recruited to work on its new
magazine, Hip And Happening, is under 30. At its publication Travel
Today, only younger journalists are sent on assignments abroad. To
determine which journalists are allocated to stories at some of
MagicMags’ other publications, there is an (unwritten) policy that the
journalist’s age must reflect the age of those interested in reading
the story.”

Sound familiar? Well, these practices may not be
around for very much longer. This is because they may fall foul of a
new age-discrimination law that is to be implemented on 1 October 2006.
At the moment, the government has only published draft regulations, but
we know that age discrimination in employment, recruitment, promotion
and training will become unlawful.

In summary: Discrimination
will be prohibited unless objectively justified. This covers both
direct discrimination (for example, not promoting employees because of
their perceived or actual age) and indirect discrimination (for
example, a graduate recruitment scheme that requires applicants to have
a recently created degree, such as media studies, which older people
are less likely to have).

Difference in treatment based on age
may be objectively justified if it pursues a legitimate aim and it is a
reasonable and necessary (or proportionate) means of achieving that
aim. Examples of a legitimate aim could be encouraging and rewarding
loyalty, or fixing a maximum age for recruitment based on training
requirements or the need for a reasonable period of employment before
retirement.

Harassment and victimisation will also be unlawful.
Giving someone the nickname “grandad” or “the teenager” in the office
would be best avoided in the future.

Employers can retire
employees at the default age of 65 or above, provided it is a genuine
retirement. Retirement ages below 65 will have to be objectively
justified.

The current upper age limit for unfair dismissal
claims (65 or the normal retirement age for the job) will be scrapped.
In order to fairly retire an employee, the employer will need to show
it is a genuine retirement and follow a new “duty to consider”
procedure.

This means that employees can request to continue
working beyond the standard retirement date. The employer must
therefore consider requests carefully before responding and ensure that
any refusal to extend the right to work is justifiable.

Service-related
benefits are potentially indirectly discriminatory, but it will be
possible to retain such benefits provided certain conditions are
satisfied.

Employers should start to think about potential age
discrimination issues now, so that any necessary changes can be made in
time to avoid future claims. The importance of this is highlighted by
the Irish experience, where age discrimination was introduced in 1998
and now accounts for around 20 per cent of discrimination claims.

Employers
should review practices, policies and procedures in relation to pay,
benefits, training, recruitment/promotion, retirement and redundancy to
identify where age or length of service is a criterion for
decision-making and consider whether this can be objectively justified.

Terms such as “the ideal candidate will be young, dynamic and energetic” in job adverts may well become a thing of the past.

Julia Palca is an employment partner at law firm Olswang

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