New Age Discrimination Act: most important employment legislation

Published: 23 July, 2008

In potentially the greatest single change in employment law for a decade, controversial new legislation came into force last Sunday (1 October) prohibiting discrimination against employees and job applicants on the grounds of their age.

Wines may continue to be judged on their vintage, but in order to comply with a European Directive on employment, the government now requires that no account may be taken of the age of employees, job applicants or those undergoing vocational training. Employers who fail to observe the new rules could face claims for potentially unlimited compensation.

According to James Warren, a specialist employment lawyer with City of London law firm Field Fisher Waterhouse, the Employment Equality (Age) Regulations 2006 cover recruitment, training, promotion, working conditions (including pay and pensions), dismissals and retirement.

They outlaw less favourable treatment of both the young and the old, as well as age-based harassment or victimisation. Service-linked employment benefits such as long service leave or sabbaticals, or even increased pay, are regarded as potentially discriminatory because they favour older employees. Although a special rule allows such benefits in the first five years of employment, after that time employers will need to be able to show that any such benefit fulfils a business need'.

Certain other exemptions are created, such as a right to discriminate if it is objectively justified', or if there is a genuine occupational requirement for an employee of a particular age. However, the government has already indicated that both tests will be very difficult to meet. For example, wine producers will almost certainly not be able to limit a vacancy for a senior vintner to masters with more than 20 years' experience'.

The legislation seeks to ensure that recruitment is focused on provable skills, rather than age or experience. Employees enjoy a new right to request to work past the normal retirement age, and employers must retire employees and consider such requests in accordance with a set procedure. In addition, a normal retirement age of less than 65 must be objectively justified' in order to avoid being illegal.

Organisations that have been operating a normal retirement age of 60 will therefore need to change this to a minimum of

65 years. There will then be a need to examine how benefits such as medical and life assurance can continue to be provided to all employees regardless of their age.

The regulations apply to all employers, including those in the wine trade, and whatever the size of their organisation. Employment experts recommend that those who have not done so already should review their practices and procedures to ensure that they are not at risk.

Field Fisher Waterhouse website: www.eploymentlaw.com/Newsletters/Spring2006newsletter.pdf

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