Calling time on age discrimination

A mini-guide to age discrimination at work

Your new rights
What does the new law cover?
The different types of age discrimination
When is age discrimination allowed?
How does the law apply to you?
How do I enforce my rights?
Getting help

How does the law apply to you?

This section looks at your new rights in relation to particular problems you may be experiencing with employment or training.

“I’m looking for work”

Proving age discrimination in the recruitment process can be difficult, as an employer is unlikely to make it obvious that they turned someone down because
they were too old, or too young.

How do you prove age discrimination in recruitment?

In order to successfully claim age discrimination in relation to recruitment, an applicant will need to show evidence that age could have been the reason that they did not get the job.The employer will then have to prove that they did not discriminate against the applicant. There is a questionnaire procedure that can be used to obtain extra information from employers;

A lack of protection for people over age 65

There is an exception under the new law which means that if you are:

• over age 65;
• over your employer’s normal retirement age if this is higher than age 65; or
• within six months of age 65, or the employer’s normal retirement age if this is higher,

then you have no protection against age discrimination when applying for jobs. An employer will be able to refuse to consider you for a job over this age, without
having to justify it, and you will have no way of challenging or appealing against the decision.

What about job adverts?

Employers should not include age limits in job adverts, and should avoid using words which could suggest they are looking for applicants from a particular age group. For example an advert which states that the company requires a ‘young, enthusiastic’ person could be used as evidence of age discrimination.

Q: “I’m applying for a job and the application form asks me to give my date of birth. Do I have to provide it?”

A: Employers can still ask for your date of birth. This would not automatically be age discrimination, but it could be used as evidence to suggest discrimination, if you do not get the job, and you believe this is because of your age. It is good practice for employers to remove the date of birth from the application form and to ask for this on a separate equal opportunities monitoring form instead. The person deciding who to shortlist for interview or who to hire should then not see this information.

Q: “I’m applying for jobs for which I am well qualified, but I haven’t been offered any interviews yet. I think this is because of my age (I’m 61). Does the new law help me?”

A: It is unlawful for employers to reject you for a job on the grounds of your age (unless they can justify this, or it is allowed by an exception under the new law such as the exception covering people over 65 or for genuine occupational requirements ).

It can be difficult to prove that discrimination has taken place, but the questionnaire procedure can help you to get more information from the employer.

Q: “I’ve been told by an employer that they won’t consider me for a job because
I’m too old. I’m age 66 and the employer has a retirement age of 65. Can they do this?”

A: The new law allows employers to reject people for a job if they are over age 65, or the employer’s normal retirement age if this is over 65, or if they are within six months of that age. Unfortunately, this means that you do not have any protection under the new law, even if the employer openly admits that your age is the reason they are not considering you for a job.

“I’m not getting a fair deal at work”

The new law gives you the right not to suffer a disadvantage at work because of your age.

This means you should not have less favourable terms and conditions, or access to promotion opportunities, than younger colleagues, because of your age.

Q: “I have been passed over for promotion, even though I have more experience and qualifications than the younger person who got the position.

I think it is because of my age.

It seems that it is only people under age 50 who are promoted to senior positions in this company.”

A: If your employer has a practice of only promoting younger people, this will be unlawful age discrimination. The difficulty could be in proving this behaviour to
have taken place. You will need evidence to show that age could have been a factor in the decision not to promote you – for example, this could be evidence that you were better qualified for the job, and that people over 50 rarely get promotion. It will then be for your employer to show that age was not the reason and that they did not discriminate against you.

You could use the questionnaire procedure under the new law to request information from your employer about why you did not get the job, and about the
ages of people who are promoted to senior positions.

“I’ve been made redundant”

Q:“I am being made redundant. I’m age 65. What am I entitled to?”

A: The new law abolishes the upper age and lower age limits for statutory redundancy payments, so people aged 65 and over are now entitled to redundancy pay calculated in the same way as for younger people.
Age and length of service will still be used as a factor in calculating statutory redundancy pay (and compensation for unfair dismissal). People will be entitled
to one and a half week’s pay (capped at £290 per week) for each year of service in which they were aged 41 or over, one week’s pay for each year they were under 41, and half a week’s pay for each year they were under 22, up
to a maximum 20 years’ service.

This means that older people will continue to be paid at a higher rate than younger people, even though this appears to be discrimination on the grounds of age. The government has said it believes this difference in treatment is justified.

You may be entitled to more than the statutory minimum redundancy payment under your contract of employment. The law sets out ways in which employers
can make enhanced redundancy payments using the same age bands as used in the calculation of statutory redundancy.

It will be unlawful for employers to use age as a factor when considering who to select for redundancy (unless they can justify this). Using length of service (for example, last in first out) to decide who to select could be indirect discrimination, but employers could try to justify this.

“I feel I’ve been unfairly dismissed”

Previously, if an employer wanted to dismiss an employee who was aged over 65 (or above the employer’s normal retirement age if different), the employee had
no rights to dispute it. This was because there was an upper age limit for unfair dismissal claims. The new law gets rid of this age limit, which means that employees over age 65 will be able to challenge an employer’s decision to dismiss them, as long as they meet the other eligibility requirements, such as having at least one year’s service. However, the introduction of the new provisions on retirement (see below) creates a limit to this new right – where the employer says the reason for dismissal is retirement and follows the correct
procedure, the employee cannot successfully claim unfair dismissal.

“I don’t want to retire”

There is no national retirement age. It’s important not to get‘retirement age’ confused with‘pension age’, as they’re different things altogether. The state pension age – the age when you’re entitled to draw your state pension– is currently 60 for women and 65 for men, but employees do not actually have to retire at this age. Working after state pension age does not affect your right to the
state pension. However, you can choose to delay drawing your state pension while you’re still working and this will entitle you to a higher annual income or a lump sum payment when you do retire.

Around one third of employers have compulsory normal retirement age. The rest have no retirement age at all and work more flexibly.

What the new law will do

The new law creates a new‘default retirement age’ of 65 (this will be the same for men and women). This means that if your employer tries to force you to retire under the age of 65, you can claim for age discrimination and for unfair dismissal. To force retirement under age 65 employers will have to justify it.

From 1 October 2006 employees have a new right to request to continue working beyond the date when the employer wants them to retire. However, it will usually
be lawful for an employer to force employees over the age of 65 to retire, as long as they follow the correct procedure.

The ‘default retirement age’ only applies to employees and civil servants. Other sectors of the working population, such as police officers, office holders and partners in firms will not be covered and so forced retirement at any age would have to be justified.

What the new law will not affect

The new law does not affect voluntary retirement. It will still be possible for a person to choose to retire under age 65 if they agree this with their employer. It will also not affect state pension age.
Employers can still set minimum and maximum age limits for membership of occupational pension schemes. There are a number of other exceptions aimed
at allowing occupational pension schemes to continue to operate without significant changes.

How will the new retirement procedure work?

From 1 October 2006 you have the right to request to stay on in your job after your employer’s retirement date. It’s important to remember, though, that this
is only a right to request staying on. Your employer can refuse the request, and the law does not require them to give reasons for their decision. It will only
be possible to challenge the employer’s decision if they have not followed the correct procedure, which is as follows.

1. Your employer gives you notice of retirement

From 1 October 2006 your employer must give you a minimum of six months’ (and a maximum of twelve months’) notice of your retirement date. At the same time, they must tell you that you have the right to request to continue working. There are special arrangements for employers to give notice of retirement to people whom they wish to retire between 1 October 2006 and 1 April 2007 (the first six months after the law comes into force). Employers are not required to give at least six months’ notice in this situation, as the law will not have been in force at the relevant time for giving notice.

Details of the special arrangements can be found on the Age Concern website www.ageconcern.org.uk/agediscrimination

2. You can request to carry on working

If you make a request not to be retired, your employer has a duty to consider that request. The procedure they must follow is known as the ‘duty to consider procedure’. Your request must be in writing, and be submitted three to six months before the intended retirement date. The wording below shows what information you must include in your letter:

“I am writing to request not to retire on your intended date of [insert employer’s intended date of retirement]. I am making this request under paragraph 5 of
Schedule 6 of the Employment Equality (Age) Regulations 2006.

I propose that my employment should continue [you must specify one of the following]:

• indefinitely
• for [insert a specific period, e.g. twelve months]
• until [insert specific date]

[You could also include information in support of your request, such as examples of how allowing you to continue working could benefit the organisation.]

I look forward to hearing from you with your suggested time for a meeting to discuss my request.”

3. Your employer holds a meeting with you

Your employer must then hold a meeting to discuss the request with you, within a reasonable period of time. You’re entitled to be accompanied to this meeting by a colleague of your choice.

Your employer must then notify you of their decision as soon as is reasonably practicable. If the employer has agreed to the request, they must confirm
whether employment will continue indefinitely, or for a certain period.

If the request has been refused, they must confirm the intended date of retirement.

4. The right to appeal

If your request is refused, or your employer agrees to continued employment for a shorter period than was requested, you have the right to an appeal meeting.

The employer must inform you of this right when they give you notice of the original decision. If you request an appeal you must do so as soon as is practical
after being told of your employer’s decision, setting out the grounds of the appeal. Your employer must arrange a meeting within a reasonable period. Again, you
have the right to be accompanied by a colleague of your choice.

5. Your employer’s final decision

As soon as is reasonably practical after the appeal meeting, your employer must give notice of their decision, giving details as in step 3 above.

Q: “I’ve been given less than six months’ notice for retirement. What are my rights?”

A: If you’re given less than six months’ notice of your retirement date, or of your right to request not to retire, you can claim up to eight weeks’ pay at the employment tribunal. This is currently limited to a maximum of £290 per week, so the maximum total compensation would be £2,320 (figures correct as at October
2006).

The compensation limits usually go up every February. If your employer fails to give you at least six months’ notice, they should still tell you about your right to request to continue working, as soon as possible. If they give you less than two weeks’ notice, the retirement will automatically be an unfair dismissal.

If the dismissal was out of the blue, with little notice, and little attempt has been made to follow the ‘duty to consider procedure’, the tribunal is less likely to accept
that retirement was really the reason for the dismissal.

Q: “What if retirement might not be the real reason for dismissal?”

A: The requirement for employers to give a minimum of six months’ notice of retirement is intended to prevent employers using retirement to cover up for another reason for dismissing the employee – for example, redundancy or an
employee’s poor performance.

As long as there is a minimum of six months’ notice, an employment tribunal will accept that retirement is the genuine reason for the dismissal, and if the ‘duty to
consider procedure’ has been followed correctly, the dismissal will be fair. If retirement is not the real reason for dismissal, when less than six months’ notice has been given, it will almost certainly be an unfair dismissal, as the employer will not have followed the correct procedure for dismissing for another reason.

Unfair dismissal

A forced retirement will not be an unfair dismissal if:

• you are over 65 (or over your employer’s normal retirement age if this is higher), and
• your employer gives you between six and twelve months’notice of your retirement date, and your right to request not to retire, and
• your employer follows the correct procedure if you do make a request to stay on.

A forced retirement will be an unfair dismissal if:

• you are given less than two weeks’ notice of your retirement date and/or
• your right to request staying on, or
• your employer does not follow the ‘duty to consider procedure’ if you make a request to stay on.

A forced retirement could be an unfair dismissal if:

you are given less than six months’, but more than two weeks’, notice of your
retirement date and/or your right to request staying on.

In these circumstances it will be for the tribunal to decide if retirement was the real reason for the dismissal.

Too old for training?

It’s not just people who are employed who benefit from the new legislation. People in adult education and training are protected, too, as course providers are not allowed to discriminate on the grounds of age. All further education, higher education (including university courses), adult learning and training which provides you with skills relevant to work is covered by the legislation.

Training provided by employers and other organisations on their behalf is also included.

As with employment, both direct and indirect discrimination is unlawful, unless the course provider can justify the discrimination. Victimisation and harassment on the grounds of age is also unlawful.

A course provider has to provide courses to people of all ages on the same terms, without treating people of a particular age group less favourably (again, unless this can be justified or is covered by an exception).

Course providers can set age limits for admission to a course if they can show this is covered by the positive action exception. They have to show that the age restriction is expected to compensate for disadvantages experienced by people in the age group at which the course is aimed.

For example: An IT course restricted to people over 60 would be lawful if it could be shown that people over 60 face a disadvantage in that area of work, and that the age restriction for admission to the course was expected to compensate
for this disadvantage.

Q: “My employer won’t agree to let me go on a training course that my younger colleagues are all going on. He says it’s not cost-effective to invest
in training for me when I’m approaching retirement.”

A: This could be unlawful direct discrimination as you are being treated less
favourably than younger colleagues because of your age

Your employer may try to argue that they are justified in refusing you training for reasons of business efficiency. They would need to take into account the cost of training staff of all ages, bearing in mind that other staff may leave soon after training, for reasons unconnected to retirement. If you were to claim age discrimination, the tribunal would have to decide whether refusing you training was an appropriate and necessary way of achieving a legitimate aim.

Q: “A course I want to go on at my local college has an upper age limit of 60. I’m 67. What can I do?”

A: Your college would be acting unlawfully by setting an age limit for people attending a course, unless they can show it is justified, or it is covered by an
exception under the new law. They cannot argue that a course is for working age people, as you may be 67 and wanting work.