In 2006 the Employment Equality (Age) Regulations made it unlawful to discriminate against people at work because of their age. Parallel regulations are being implemented in Northern Ireland.
The regulations are similar to other equality legislation on race, sex, disability, sexuality and religion. They cover recruitment, terms and conditions, promotions, transfers, dismissals and vocational training. Unjustified direct and indirect discrimination, harassment and victimisation on grounds of age or apparent age is prohibited. There are additional rules around retirement, and some limited exemptions.
Age is a key issue for union activists. Britain has an ageing workforce - nearly a third of workers will be fifty by 2020 – although UNISON has seen a boom in the number of young members joining. The regulations also cover trade organisations, so UNISON has to comply as an organisation.
What UNISON says
UNISON takes a lead in supporting equality in the workplace and throughout wider society, including discrimination on grounds of age. Young workers may be belittled, and older workers may not be given opportunities to develop.
However in very limited situations there may be reasons for different treatment of workers of different ages. This might be to correct the effects of discrimination in the past, or to protect rights around pensions. Where this occurs, it needs to be objectively justified (see below). Positive action is permitted to tackle age imbalances, so older workers might be particularly encouraged to take IT training, and vacancies might be specifically advertised to certain groups in addition to general advertising.
Who will be affected?
The regulations include all workers, but will affect different age groups in different ways.
Younger employees will benefit because formal experience requirements that cannot be justified will be removed, and informal stereotypes challenged.
Employees in their 40’s and 50’s who are dismissed may be able to claim substantial compensation for loss of earnings if their dismissal was age-related.
Workers in their mid-60’s benefit least, as although they can formally request not to stop working, employers can still force them to retire and discriminate against them when applying for a job.
What should you do?
Unfortunately, age discrimination is deeply ingrained in many workplaces (and wider society) and passing a law won’t create change by itself. Agreeing a policy, publicising the new rights and a strong lead from UNISON is needed to give members the encouragement to speak out.
Employers have a big role to play. Senior managers should be seen to strongly support age equality; managers should be trained on their new duties and in working in a non-discriminatory way; and staff need to be informed of the age equality regulations.
New legislation is an opportunity to show workers what UNISON is doing on their behalf, and to involve members in UNISON’s work. Young members are specifically affected by the new regulations as a group, so get them involved by campaigning around harassment, respect at work, or low pay. Equally, older workers may be missing out on training or career opportunities. Think about creating a union working group on age equality to involve members.
A good collective agreement on Age Equality, properly implemented, will not only defend workers rights but also pre-empt many claims about discrimination – reducing stewards’ caseloads and the chance that an employer will be taken to an Employment Tribunal. Try to negotiate with your employer to:
Review pay scales and benefits based on more than 5 years of service. Unless there is an objective justification for these, they will be unlawful. Use this to try to negotiate alternative benefits for members or broaden the benefits to cover all staff, irrespective of age.
Review other agreements and policies to ensure they are not discriminatory. Audit all employment practices including training, staff development, and recruitment and selection, to make sure that age discriminatory practices are not taking place.
Argue for workers to have a flexible decade of retirement between 60 and 70 to give them maximum flexibility as to when they retire. The phasing out of the default retirement will begin in April 2011, and will be abolished from 1st October 2011. For more information see the section on retirement and pensions below.
Do check the rules of your pension scheme! The Finance Act 2004 (in force from April 2006) allows pension schemes to permit members to continue to work and still claim their pension. Workers may want to:
continue paying into their existing pension scheme to increase their final pension
stop paying in, because with reduced hours their ‘final salary’ will reduce
Get a positive public commitment from your employer to oppose age discrimination.
Establish a joint union-management working group on age discrimination
Organise anti-discrimination training for all line managers. This is in the employer’s interest because they may be held responsible for actions of their staff.
Monitor the impact of age to identify any problems. This can also provide evidence that can be used for objective justification of any age discrimination. A starting point would be to keep statistics or those who apply, and also those who are successful in applying, for jobs, training, and promotion; and the outcomes of performance assessment and disciplinary and grievance procedures.
The business case
Employers are legally required not to discriminate, but there are positive advantages of age equality as well. Branches should be stressing the positive advantages of age equality. Employers may miss out on the skills of good workers and potentially have their reputation damaged. Employees who are subject to discrimination:
are likely to be less happy and less productive.
may resign. According CIPD’s “2010 Resourcing and Talent Planning survey” The median recruitment cost of filling a vacancywas £8,333 for senior managers/directors and £2,930 for other employees.
may take a case to an Employment Tribunal. There is no upper limit on the amount of compensation that may be awarded, and this may be substantial because an older employee may face substantial financial loss if they resign and cannot get a comparable job.
Recruitment materials and processes should not discriminate on grounds of age. Some good practice points include:
Years of experience requirements may be discriminatory, as younger workers may have equivalent skills but be too young.
Interviewers should be trained in equality and interview notes kept for 12 months.
Jobs should not just be advertised to a niche market which may exclude different age groups. They should avoid words such as ‘mature’, ‘young’, energetic’.
Qualifications should allow alternatives, or equivalent experience. Qualifications have changed over the years, and younger people are more likely to have gone to university.
Length of service
Service related pay and benefits are used widely to motivate staff, reward loyalty, and recognise experience. Length of service criteria can continue to be used to reward staff, as long as the period of service is not more than five years. Over five years, any difference will need to be objectively justified. Long pay scales may need to be changed.
Unfair dismissal and redundancy
The current upper age limit for unfair dismissal and redundancy rights is being removed. This means that workers over 65 and under 18 will get the same rights to claim unfair dismissal - or to receive a redundancy payment - as other workers. Redundancy criteria should avoid age-related criteria and practices such as “last in first out” are likely to be discriminatory.
The exception is the current statutory redundancy payment scheme which is being kept by the government. This is half-a-week’s pay per year in employment up to the age of 22, one-week’s pay per year aged 22-40, plus one-and-a-half weeks pay per year aged 41 and over. Occupational schemes which follow this, or a multiplier of it (e.g. 2 weeks pay for up to 22 year-olds, 4 weeks for 22-40, and 6 weeks over 41 years-old) are allowed, but other age-dependent schemes are likely to be discriminatory.
The National Minimum Wage (NMW) has three age-related levels at 16 and 17, 18 to 21, and 22 and above. These will remain. In addition, employers can vary the pay of young workers less as long as it is the same for the whole of any particular NMW age band, and they pay less than the full adult NMW.
So workers aged over 22 can be paid more than those under 22, as long as those under 22 are paid less than the full adult NMW. Those aged over 18 can be paid more than those aged under 18, as long as those under 18 are paid less than the full adult NMW.
Retirement and Pensions
The Coalition Government has announced that the default retirement age will be abolished from 1st October 2011. The phasing out of the abolition will begin in April 2011.
The last day workers can be forced to retire using the Default Retirement Age (DRA) is 30 September 2011. As a result, the final day that an employer can provide six months’ notice using the DRA is 30 March 2011.
Employers can still use the DRA between 30 March 2011 and before 6 April 2011, but they are limited to using short notice provisions, which can lead to workers claiming compensation. The table below, produced by ACAS, gives details of the transitional arrangements. All of these changes are subject to Parliamentary approval.
Transitional arrangements for phasing out the DRA During the transitional period, retirement processes which have already begun can continue to their conclusion provided that:
• a notification of impending retirement was issued by the employer prior to 6 April 2011
• a late notification is issued between 30 March 2011 and 5 April 2011
• the date of retirement falls before 1 October 2011
• the DRA procedure, as set out in the previous Employment Equality (Age) Regulations 2006, is followed correctly (including the employee’s right to request to stay on is given serious consideration by the employer)
• the other requirements of the former DRA procedure are met (eg the person is 65 or over; or is the employers’ normal retirement age if this is higher than 65).
Retirements using the DRA will cease completely on 1 October 2011.
In general terms, under the new system the dismissal or retirement of older workers is intended to be dealt with either by an objective company policy, individual negotiation or by formal performance management procedures. The ACAS guidance summarises the issue will the following statement: “Removing the DRA does not mean that employees will never be able to retire. It just means that employers cannot force employees to retire at a set age unless the age canbe objectively justified”
This ACAS guidance can been seen here: http://www.acas.org.uk/index.aspx?articleid=3203 Employer Justifed Retirement Age
The ACAS guidance states that employers will continue to be able to retire an
employee at a set age provided it can be objectively justified. They call this the “employer justified retirement age” (EJRA). They go on to say that they expect “case-law around EJRA [to] develop once the DRA has been abolished.” Examples given of objective justifications are workforce planning or the health and safety of individual employees.
What should UNISON branches do now?
The coalition will bring forward detailed and formal regulations based on these principles. Subject to parliamentary procedure these will be implemented and the transitional arrangements set out above will come into force.
UNISON advice to workplace reps is to monitor closely all retirement and dismissal procedures during the transitional period described above. Branches should seek to negotiate a workplace retirement policy which incorporates these changes and creates a level playing field for all employees regarding retirement. The agreement should:
Ensure that employers do not abuse the abolition of the default retirement age to disciminate against older workers.
Ensure that any “Employer Justified Retirement Age” is based on a real, objective reason, not an arbitrary cut-off point.
Ensure any changes to the EJRA are the subject of negotiation with unions
Makes it clear that employees have the right to be accompnaied by a trade union representative if they are invited to a discussion with a manager regarding their retirement arrangements
The regulations exempt a wide range of rules that occupational pension schemes use, to avoid the risk of reducing pensions that people receive.
Age-based contributions to pension schemes can continue if they are aimed at producing an equal outcome in pension benefits. Employers can also continue to apply minimum and maximum age limits for membership to pension schemes. Employers will not be able to set a maximum age for contributions to a pension scheme, but will be able to set a maximum number of years of pensionable service.
Direct and indirect discrimination
The regulations cover both direct discrimination and indirect discrimination.
Directdiscrimination is less favourable treatment because of someone’s age. It could be not appointing them; refusing them a promotion or training; or giving them worse terms and conditions.
Indirect discrimination is having policies or benefits that, although equally applied to all employees, disadvantage people of a particular age. This is unlawful whether or not the discrimination is intentional. An example could be a bonus payment for use of IT, which older workers would generally be less familiar with.
In exceptional circumstances, the regulations allow employers to practice both direct and indirect discrimination but only if it can be ‘objectively justified’ (see below).
The law says:
A person ("A") discriminates against another person ("B") if—
(a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, OR
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
(ii) which puts B at that disadvantage,
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
Bullying, Harassment and Victimisation
Harassment on grounds of age is prohibited under the regulations. This may be obvious bullying, or more subtle teasing. It includes unintentional behaviour which is upsetting to the individual and also covers a general culture which, for example, tolerates the telling of ageist jokes. Both the employees responsible and the employer may be liable.
It is also illegal to victimise someone for either making a complaint or intending to make a complaint about age discrimination. This covers people giving evidence in support of a complaint. Employers have to take reasonable steps to prevent victimisation of someone by their colleagues.
Employers may discriminate both directly and indirectly on grounds of age, but only under certain exceptional circumstances.
There are some exemptions for length of service up to 5 years; pay for young workers; enhanced redundancy pay following the statutory scheme; and where legislation specifies an age (selling alcohol, for example). Life assurance cover given following early retirement on grounds of ill health can be terminated at the ‘normal retirement age’.
There is also a provision for treating people differently if there is a Genuine Occupational Requirement. This will be very rarely applicable, but one example might be an actor playing a young person.
The most likely argument for different treatment is “objective justification”. This requires solid evidence that the treatment is a “proportionate means of achieving a legitimate aim”. “Proportionate” means that the discriminatory effect should be significantly outweighted by the benefits of the legitimate aim, and there is no reasonable alternative. A “legitimate aim” must be a specific real business need, which could be economic, related to health and safety or training requirements of the job.
Objective justification cannot be just ‘to save money’ and must be backed up by evidence that the different treatment should produce the desired result.
Negotiating collective agreements and their effective implementation is the best way to prevent age discrimination. However, if an individual is discriminated against they may use the grievance procedure which all employers must legally have, and go to an Employment Tribunal (ET) within three months of the act of discrimination. There is no limit to the compensation an ET may award.
UNISON has a wealth of bargaining information on the Bargaining Zone at: www.unison.org.uk/bargaining
ACAS have produced guidance on the retirement regulations at:
The full regulations are at: www.opsi.gov.uk/si/si2006/draft/20064266.htm
If you have any comments on this factsheet, UNISON would welcome receiving your views by email on email@example.com This factsheet and further bargaining information can be found on the Bargaining Zone at www.unison.org.uk/bargaining/factsheets.asp