Employment E-Missive No.17 - Discrimination a Coming of Age - Free Lecture Notes

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by Charles Price, LLB.(hons) LLM, barrister
No5 Chambers,
Birmingham - Bristol - London
Telephone 0870 203 5555

www.no5.com
www.charlesprice.net
Email: :cp@no5.com

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Age Discrimination Lecture Notes and Commentry

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Charles Price specialises in Respondent and Claimant work in England and Wales. This e-mail is for academic purposes only. Legal considerations must be looked at in the light of the particular circumstances and it may be wise to seek legal advice.

Please note that there will soon be a free policy bank on my site where you will be able to refer to a plethora of employment policies. If you have any to add to the bank or suggested amendments to make please email me.

Age Discrimination Advice for Lawyers and Businesses

Contents

A Summary of the Regulations

To Whom do They Apply?

Those Who are Protected

Those Not Protected

What Do The Regulations Say?

Obvious Examples of Behaviour Covered under the new Act

Direct Discrimination

What May Constitute Direct Discrimination

Recruitment - Advertising /Job Descriptions/ Training/Pay

 
Retirement

Notification

Request not to Retire

Duty to Consider Request to Stay On

The Decision

The Appeal

Fairness of Retirement Dismissals

Transitional Period

Justification

The Legitimate Aim

Burden of Proof

Territorial Jurisdiction

 Indirect Discrimination

 Harassment

Victimisation

A Protected Act

 In What Instances are Otherwise Discriminatory Acts Lawful Under the Regulations?

Pension Exemptions

Practical Steps for Businesses

Introduce Flexible Policies

Diversity Policies - Training Staff about What may Constitute Harassment

Positive Action

Recruitment

Pay/Terms and Conditions

Handling Retirement

Redundancy

Business Checklist

Introduction

The Irish introduced age discrimination provisions through the Employment Equality Act as far back as 1998 and since then age discrimination cases have constituted 25 percent of all discrimination claims reaching a tribunal. With unlimited awards in discrimination cases being promulgated and claims to employment tribunals up on this side of the water, businesses and practitioners have every reason to keep one eye the new law. What follows is a general summary of the new Age Discrimination Regulations with commentary.

Many commentators have hailed the emergence of age discrimination law in this country as an attempt to tackle the last area where employers have been able to unfairly discriminate in the workplace. Furthermore, this battleground will become more relevant to all of us as the proportion of the population aged over 65 increases. A 2001/02/14 DfEE Press Release stated that, 'there are around 19 million people aged 50 and over in the UK, that constitutes 40% of the adult population'. By 2006, 45 to 59 year olds will become the largest single group in the workforce, by 2010, in the UK over 40% of everyone aged 16 and over will be aged over 45 and by the mid 2030's well over a third of the workforce will be over 50. Older people will become an ever more significant proportion of the population and society will need to protect them as we depend increasingly on their contribution.

 The new regulations, however also protect those younger workers who for example, find that older workers are being rewarded unfairly on the sole basis of their age. Some surprising suggestions as to what may fall foul of the new law have been put forward and are discussed below.

A Summary of the Regulations

 To Whom do They Apply?

employer organisations and trustees and managers of occupational pension schemes and crown-appointed (including unpaid) office holders (N.B. Reg 30 provides that a dismissal for retirement will not constitute age discrimination provided that the employer observes the retirement procedure set down in Schedule 6 to the Regulations. This provision, which renders lawful an otherwise discriminatory dismissal, only applies in relation to employees as strictly defined by S.230 ERA, a person in Crown employment, and relevant members of the House of Commons and House of Lords staff).

Those Who are Protected

Employees, those on fixed term contracts, job applicants, self employed such as barristers, members of trade unions, anyone in vocational training, persons applying for a place on a vocational training course or persons applying to become members of trade organisations, police officers.

Those Not Protected

Members of the armed forces and unpaid volunteers

What Do The Regulations Say?


The Regulations make it unlawful on the grounds of age to:

 a.. Discriminate against anyone i.e. treat them less favourably than others because of their age, unless objectively justified.
 
a.. Discriminate against them indirectly against anyone i.e. to apply a criterion, provision or practice which disadvantages people of a particular age unless it can be objectively justified.
 
 a.. Subject someone to harassment i.e. to conduct that violates a person's dignity or creates an intimidating, hostile, degrading humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim.
 
a.. Victimise someone because they intend to make a complaint or give evidence in relation in relation to a complaint of discrimination on grounds of age.
 
a.. Note: Employers can be liable for acts of employees who discriminate on grounds of age and so training staff about the regulations is vital.
 
a.. Upper age limits on unfair dismissal and redundancy will be removed.
 
 a.. The natural default retirement age of 65 is introduced which means the compulsory retirement age of below 65 unlawful unless objectively justified.
 

a.. The employer has to consider any request by a worker to work on past 65.
 
Obvious Examples of Behaviour Covered under the new Act

 o  Subject to a defence of objective justification, discrimination by an employer or other person or body covered by the Regulations is unlawful if it relates to one of the following matters:

 a.. the arrangements an employer makes for the purpose of determining to whom he should offer employment
 b.. refusing to offer, or deliberately not offering, a person employment, or the terms on which employment is offered
 c.. the terms afforded by an employer to a person in employment
 d.. the opportunities the employer affords (or refuses to afford) the person for promotion, a transfer, training, or the receipt of any other benefit
 e.. dismissing the person, or subjecting him or her to any other detriment.
 
Obvious examples of such discriminatory conduct are:

o Noting in a job specification that the post must be filled by a person of a particular age.

 oRefusing to offer, or deliberately not offering, a person employment, or the terms on which employment is offered, it may be possible, as with the other strands of discrimination, to prove facts from which an inference of discrimination can be drawn  Reg 7(1)(a)(c)

o  The terms afforded by an employer to a person in employment  Reg 7(2)(a)

 
o The opportunities the employer affords (or refuses to afford) the person for promotion, transfer, training, or receiving any other benefit: this would cover the situation where an employer withdraws access to training or benefits, such as offering life insurance, from workers over a certain age  Reg 7(2)(b) and (c)

 Dismissing the person, or subjecting him or her to any other detriment  Reg 7(2)(d).

Direct Discrimination

The most important difference is that, unlike all other forms of discrimination, direct discrimination on the ground of a person's age can be lawful if it constitutes a proportionate means of achieving a legitimate aim. Direct discrimination occurs where, on the ground of an employee's age, the employer treats him/her less favourably than he treats or would treat other persons Reg 3(1)(a). This involves examination of someone in the same relevant circumstances as the employee Reg 3(2).  NB Reg 3(3)(b) makes it clear that discrimination of the ground of a person's age applies to those cases where the person is discriminated against on account of a mistaken belief of age.

Once the discriminator has demonstrated the existence of a legitimate aim he/she must then show that the provision, criterion or practice was proportionate. The ECJ has explained that such proportionality requires that the means used to achieve an aim must not exceed the limits of what is appropriate and necessary to achieve that aim e.g C-157/96 R v Maff ex parte NFU [1998] ECR I-1211.

What May Constitute Direct Discrimination

Recruitment - Advertising /Job Descriptions/ Training/Pay

Job specification criteria accompanying advertisements and the way in which potential job applicants are targeted may constitute 'arrangements an employer makes for the purpose of determining to whom he should offer employment' under Reg 7(1)(a) and a candidate may point to the advertisement as an intention to discriminate. The way in which potential job applicants are targeted may constitute 'arrangements an employer makes for the purpose of determining to whom he should offer employment' and be caught by the Regulations.

7(1)(a) would apply to practices such as the milk-round, whereby employers target graduates. It is recommended that if employers choose to continue operating a graduate recruitment programme, that there are visible, alternative entry methods for older graduates and others. Employers should also consider the appropriateness and justifications for other programmes such as, leadership and management development programmes. Only 13.2 percent of undergraduate qualifiers in 2003 were aged 40 years and over (reported in Croner HR centre online, 2001). Questions on application forms, and job specification requirements could also fall within its scope. Hence, employers should be aware of asking when a candidate started at school and should ideally ask any age related questions in an age monitoring form.

When predicting what impact the Regulations will have over here we can use Ireland as a touchstone as they introduced age discrimination provisions through the Employment Equality Act as far back as 1998. In the Irish case of, Equality Authority v Ryanair DEC-E/2000/14, Ryanair was fined £8000 fro breaching Irish discrimination legislation by advertising for a job for a 'young and dynamic professional'. The respondent's argument that the word 'young' in an advertisement specifying a 'young' candidate was a euphemism for 'enthusiastic' and 'passionate' rather than a reference to age was rejected. It therefore follows that all job advertisements should attempt to be as age neutral as possible. Further steps to take may be:

Instead of focusing on the number of years experience required, employers might be better off setting requirements as to the type of experience needed for the job. Adverts such as, 'Graduated in the last seven years' will be deemed ageist under the new regime. Any request for a number of years experience must be objectively justified.

Employers must also be aware of alienating older candidates by stating that a candidate with little or no experience will be preferred or referring to a position as 'ideal for a first starter'. This sort of advertisement will be strong evidence leading to an inference of age discrimination. Even requesting that recent graduates apply (most are in their 20s) may be a criterion likely to discriminate against older graduates. Furthermore asking for degrees only offered in the last 20 years or so would be likely to be deemed to discriminate against older candidates. Monitoring shortlists and applications for a job to make sure that all age groups are represented is a good way of ensuring fairness.

In the Irish case of, Tom O Connor v Lidl Ireland Gmbh (DEC - E - 005/12) Lidl sought district managers and it advertised for a graduate with not more than 2-3 years experience in a commercial environment. The Equality Officer found that the advertisement was indirectly discriminatory on grounds of age. In light of Lidl destroying all CVs and applications for the district manager position the Equality officer ordered them to refrain from issuing similar advertisements, to remove the requirement specifying dates of birth, to retain information on recruitment for 12 months and to hold a clear record of the objective criteria in deciding not to call candidates to interview. It is also suggested that employers do not ask for a photograph with job applications for the above reasons.

If an advertisement is going to specify that an individual must be prepared to work late then it must be a genuine occupational requirement  and a 'provision, criterion or practice' (pcp) that may be objectively justified. It is anticipated that otherwise it may be possible for members of a particular age group to prove that they have childcare commitments leading to an indirect discrimination claim. In the case of Nagarajan v London Regional Transport 1999 ICR 877  the House of Lords held that interviewing and assessing candidates for a post can amount to making 'arrangements' for the purpose of determining to whom employment should be offered.

As far as performance reviews are concerned it has been suggested by commentators that a failure to conduct performance reviews of older candidates when younger workers are receiving them may constitute discrimination and further, the same applies if poor performance due to the natural impact of aging is considered when an individual is promoted, demoted or dismissed.  Although the rules do not come into force until 1 October, they could still affect performance appraisals and progress reviews conducted before then. For example, employers may use old reviews and reports going back a number of years as factors influencing the award of benefits or promotion.  

Training aimed at progressing the careers of their workers can advance an employee in terms of his/her continued progression through the ranks of the company and therefore should be open to all workers regardless of age.

Employers should be wary that pay structures may be indirectly discriminatory. Using experience as one of the criteria against which a decision to offer employment is made has the potential to constitute indirect discrimination. The same applies to promoting candidates on a pay scale to a level that they ordinarily would not be entitled to. Again, when offering terms and conditions experience age should not be a factor. Reg 32 sums up the law well in that it allows an exception for service-related benefits, in that it makes allowances only for rewarding long service with the employer and not for experience gained elsewhere. Reg 32(2) states however, that if an employer gives higher pay or greater holiday entitlement to workers having more than five years' service, he will need to provide a good business reason for doing so, such as encouraging loyalty or motivation. It must 'reasonably appear' to the employer that one of these aims is fulfilled, he need not provide irrefutable proof that it actually is. Nonetheless, the standard of proof will not be satisfied without some evidence to back it up. The Acas Guidance suggests that employers could gather such evidence through monitoring, staff attitude surveys or focus groups.

Note that there are special provisions for calculating a worker's length of service for the above purposes. On each occasion on which the employer decides to use the criterion of length of service in relation to the award of a benefit, he must make a choice between two bases for calculating a worker's length of service. These are:

a.. the length of time the worker has been working for him doing work which he reasonably considers to be at or above a particular level (assessed by reference to the demands made on the worker in terms of, for example, effort, skills and decision-making); or
  b.. the length of time the worker has been working for him in total - Reg 32(3).
 
The employer is also entitled to discount any period of absence from the calculation unless it would not be reasonable for him to do so, or even discount periods in service before a period of absence if it is reasonable to do so  Reg 32(4). NB The general exemption for service-related benefits does not apply to 'any benefit awarded to a worker by virtue of his ceasing to work for' the employer Reg 32(7).

Retirement

Recital 14 of the preamble the EU Equal Treatment Framework Directive (No.2000/78)  states that the Directive is without prejudice to national law setting retirement ages, and Article 6(1) provides that Member States may specifically permit difference of treatment on the ground of age where there is a legitimate employment policy justifying it. The Employment Equality (Age) Regulations 2006 SI 2006/1031

enact this by introducing a default retirement age of 65 (to be reviewed in 2011). A dismissal that is deemed to be for retirement falls within the ambit of Reg. 30 and does not constitute unlawful discrimination.

Notification Crucial

Under Reg 30 this procedure only applies to, a person in Crown employment, the dismissal for retirement of employees employed under a contract of employment as defined by S.230 of the Employment Rights Act 1996, and relevant members of the House of Commons and House of Lords staff.

A dismissal for retirement reasons will not be deemed unlawful age discrimination if the employer between 6 and 12 months before the date of dismissal, in writing notifies the employee of his right to request not to retire on the intended date of retirement *. If that requirement is not followed, whether or not the dismissal is deemed to be for retirement and fair, will be determined by the tribunal, taking into consideration the extent to which the employer has complied with the rest of the procedural duties and the extent to which the employer has complied with the statutory procedure. Such a failure to notify can constitute a stand alone claim in the employment tribunal. Para 11 of Schedule 6, on finding such a complaint to be well-founded, a tribunal must order payment of compensation of an amount not exceeding eight weeks' pay. A 'week's pay', for this purpose, is subject to the £290 limit currently imposed by S.227(1) ERA.

 *(The rule applies regardless of whether or not the date has already been specified in any notification or other information the employer may already have given the employee. If the employer fails to notify at least six months before the intended retirement date, he is subject to a continuing duty to inform the employee in writing of the intended date of retirement and of the right to request to work on past the retirement date  para 4, Sch 6. This continuing duty lasts until two weeks before the date the employee's employment is due to terminate. If the employer complies with the duty to inform in accordance with para 4, the dismissal is still potentially for retirement, and therefore potentially fair depending on whether the rest of the procedural requirements have been complied with).

The Employment Equality (Age) Regulations 2006 SI 2006/1031 introduces a default retirement age of 65. Provided the employer follows a prescribed procedure, he/she will be able fairly to dismiss an employee for retirement at this age or above. Employers who operate a retirement age lower than 65 will have to objectively justify it.

Request not to Retire

Pursuant to, Para 5 of Schedule 6 if in a case where;

o The employer has fulfilled the notification requirements set out in para 2, the request is made between three and six months before the intended date of retirement (the right to request lapses three months before retirement);

o  in a case where the employer has not fulfilled the notification requirements set out in para 2, the request is made at any time before the intended date of retirement

The employee has a right to request not to retire on the intended date of retirement but this must be in writing, and must propose that employment continue indefinitely, or for a stated period, or until a specified date. Where the employer has complied with neither the notification requirement of para 2 nor the continuing duty to notify in accordance with para 4, the employee will not have an intended date of retirement. In that case, the employee's request must identify the date on which he or she believes the employer intends to retire him or her para 5(2).

In what seems like an unnecessary further tightening up of procedures in employment law, Para. 5(3) of Schedule 6 requires that the employee's request to work on past the intended retirement date must state that it is made 'under this paragraph'. It is not clear at this stage, whether this stipulation means simply that the request must be obviously labelled as a request not to retire or must expressly and specifically cite Para 5 of Schedule 6 to the Employment Equality (Age) Regulations 2006. Provision is made under Para 7(3) to remove the requirements in connection with the duty to consider a request to work on past the intended date of retirement where, before the end of the 'reasonable period' after the request is made, employer and employee agree between them to extend employment beyond the intended date of retirement.

Duty to Consider Request to Stay On

Under paras 7-9 of Schedule 6 the employer must:

o Hold a meeting to discuss the meeting with the employee within a reasonable period after receiving it (The requirements are also waived where it is not practicable to hold a meeting within the reasonable period para 7(4). Where para 7(4) applies, the employer may consider the request without holding a meeting provided he considers any representations made by the employee).

o Take all reasonable steps to attend the meeting

oNotify the employee of the decision as soon as is reasonably practicable after the meeting.

An employer's failure to allow the employee to be accompanied can be compensated, following a successful complaint to an employment tribunal, by an award of no more than two weeks' pay (subject to a capping s.227(1) ERA). Both the employee and the companion are also protected from detriment and dismissal in relation to the right to be accompanied by para 13 of Schedule 6. Paragraph 9 of Schedule 6 gives an employee the right to be accompanied during the initial meeting and during an appeal meeting, to consider his request not to retire. The companion must be chosen by the employee, must be a worker employed by the same employer as the employee, and must be permitted both to address the meeting and to confer with the employee during it. The employee also has the right to rearrange a meeting to a convenient time within seven days of the employer's proposed date if the chosen companion is not available on the employer's proposed date. S.108 ERA is amended by para 24 of Schedule 8 to the Regulations so that complaints of unfair dismissal in this respect are not subject to the normal one-year qualifying period.

The Decision

The employer's decision must be notified in writing to the employee, and must be dated. If the decision is to let the employee continue indefinitely that must be stated or in the alternative, the extension agreed. If the employer decides to refuse the request, the notice should confirm both that he wishes to retire the employee and the date on which dismissal is to take effect.

The Appeal

 Para. 8 of Schedule 6 imposes almost identical requirements as to the form and timing of the appeal meeting as are imposed in respect of the initial meeting. The appeal meeting must be held within a reasonable period after the date of the notice of appeal; the employer and employee must take all reasonable steps to attend; and the employer's written decision on appeal must be given to the employee as soon as is reasonably practicable after the date of the meeting.

However, there is very little guidance on what should be considered at the appeal meeting and how the decision should be made, again we must wait for case law to guide. The employee must give notice of appeal as soon as is reasonably practicable after the date of the employer's notice of decision the notice must be in writing, be dated and set out the grounds of appeal.

Fairness of Retirement Dismissals

Schedule 8 to the Regulations inserts certain provisions into the Employment Rights Act 1996S.98(2)(a) adds retirement to the existing potentially fair reasons for dismissal. However, instead of being subject to the usual test of fairness for dismissal provided for by S.98(4) ERA, Ss.98(2A) and (3A) provide that the fairness of retirement dismissals shall be determined only in accordance with Ss.98ZA-98ZG.

S.98ZA: dismissal of an employee before the age of 65, if he or she has no normal retirement age, is not for retirement.

S.98ZB: dismissal of an employee with no normal retirement age at 65 or above is for retirement if the para 2 duty to inform the employee of the right to request not to retire has been complied with in respect of that date and the dismissal takes effect on the intended date of retirement, notwithstanding any other reason.

S.98ZC: dismissal of an employee before his or her normal retirement age is not for retirement.

S.98ZD: dismissal of an employee at the normal retirement age, where that age is 65 or above, is for retirement if the para 2 duty to notify the employee of the right to request not to retire has been complied with in respect of that date and the dismissal takes effect on the intended date of retirement, notwithstanding any other reason.

S.98ZE: dismissal of an employee at the normal retirement age, where that age is lower than 65, is for retirement if the para 2 duty to notify the employee of the right to request not to retire has been complied with in respect of that date and the dismissal takes effect on the intended date of retirement, notwithstanding any other reason, provided the lower retirement age is objectively justified.

S.98ZF: where the employer has failed to comply with the duty to notify under para 2 of Schedule 6, whether or not the dismissal is for retirement will be determined with regard to whether or not the employer notified the employee of the right to request working on past the intended retirement date under para 4, and, if so, how long before dismissal that notification was given, and whether or not the employer followed or sought to follow the duty to consider procedure. Matters to be considered by the tribunal in deciding whether the dismissal is for retirement or not are as follows:

o whether the employer has complied with the notification requirement under para 4 of Schedule 6 (i.e. between six months and two weeks before the dismissal)

o if so, how long before the dismissal notification was given

o whether or not the employer has followed, or sought to follow, the duty to consider procedure.

Under S.98ZG a dismissal for retirement is fair unless the employer has failed to notify the employee in accordance with para 4 or has failed to comply with the duty to consider procedure (a procedurally correct dismissal for retirement is automatically fair under the new rules). Thus it follows on reading S.98 ZG that an employer who allows his staff to work past 65 can dismiss any member of staff who has chosen to do so, on six months' notice and, provided he follows the statutory procedure, that dismissal will be automatically fair. The automatically fair provisions mean that no argument may be put forward by the member of staff such as he/she was making a protected disclosure. Schedule 7 to the Regulations provides for the situation where a dismissal for retirement takes place after commencement and before 1 April 2007, putting in place a new timetable for the notification and right to request procedures. The procedure to be followed to make a retirement dismissal fair depends on whether notice to dismiss is given before, on or after the commencement date, 1 October 2006.

The Claimant will have a right to compensation under para 11 if the employer fails to inform him/her of the right to request to work on. Under the statutory retirement procedure that applies to dismissals taking place on or after 1 April 2007, a retired employee has the right to claim up to eight weeks' pay as compensation for the employer's failure to inform him or her of the right to request to work on past the intended retirement date under para 2 of Schedule 6.

During the transitional period, the employer is not placed under the para 2 duty in respect of dismissals carried out before 1 April 2007. So long as he notifies the employee of the right to request at the appropriate time under the transitional provisions, he is treated as having complied with the duty paras 2(2)(a) and 4(2)(a) of Schedule 7. The appropriate time under the transitional provisions will be much closer to the intended retirement date than would otherwise be the case. If the employer does not notify at the appropriate time, the para 2 duty does not apply and the para 4 duty (i.e. the continuing duty to notify) applies as if the employer had failed to notify under para 2 - paras 2(3)(b), 3(2)(b), 4(3)(b) and 5(2)(b). There is never any actual failure to notify under para 2, and so the right to complain to the tribunal cannot be engaged.

Dismissals taking effect between 1 October 2006 and 31 March 2007
 
IDS Brief use the following easy flow diagram:

(1) When was the notice of dismissal given?

If before 1 October, go to question 2.

If on or after 1 October, go to question 3.

(2) Has the employer given contractual notice, or, if that is more than four weeks, at least four weeks' notice of dismissal for retirement?

If YES, go to question 4.

If NO, the employer is under a continuing duty, as of 1 October and lasting until the expiry date, to inform the employee of his right to request not to retire. Go to question 6.

(3) Has the employer given at least contractual notice, or statutory minimum notice if that is greater, of dismissal for retirement?

If yes, go to question 5.

If no, the employer is under a continuing duty lasting until the expiry date to inform the employee of his right to request not to retire. Go to question 6.

(4) Has the employer on, or as soon as is reasonably practicable after, 1 October, informed the employee of his right to request not to retire?

If YES, the employer is treated as having complied with the main duty to notify under para 2 of Schedule 6. The employee can make a valid request not to retire at least four weeks before the notice expires or, if not practicable, as soon as is reasonably practicable up until four weeks after the expiry date. Provided the right to request procedure is followed properly, the resultant dismissal will be for retirement and will be fair.

If NO, the employer is under a continuing duty lasting until the expiry date to inform the employee of his right to request not to retire. Go to question 6.

(5) Has the employer, on or before the date he gave the employee notice of dismissal for retirement, informed the employee of his or her right to request not to retire?

If YES, the employer is treated as having complied with the main duty to notify under para 2 of Schedule 6. The employee can make a valid request not to retire at least four weeks before the notice expires or, if not practicable, as soon as is reasonably practicable up until four weeks after the expiry date. Provided the right to request procedure is followed properly, the resultant dismissal will be for retirement and will be fair.

If NO, the employer is under a continuing duty lasting until the expiry date to inform the employee of his right to request not to retire. Go to question 6.

(6) Has the employer discharged the continuing duty to inform by the date of dismissal?

If YES, the employee can make a valid request not to retire at least four weeks before the notice expires or, if not practicable, as soon as is reasonably practicable up until four weeks after the expiry date. Whether or not the resultant dismissal is for retirement will be determined having regard to how long before retirement notification was given and whether or not the employer followed or sought to follow the duty to consider procedure (S.98ZF ERA).

If NO, the dismissal will be unfair for failure to comply with the continuing duty to notify.

Dismissals before the age of 65

While the statutory retirement procedure above makes the dismissal for retirement of employees aged 65 or over relatively straightforward, retirement below 65 will only be possible if the employee has a normal retirement age below 65 and that lower retirement age is objectively justified  S.98ZE ERA.

Employers must think long and hard before introducing a retirement age below 65 as it will be very difficult to provide objective justification for such an arrangement. For example, it would be arguably less discriminatory testing employees for their capability to continue doing a job rather than introduce a blanket retirement age if a legitimate aim under the proportionality test of justification is to be satisfied. Therefore most employers currently operating a retirement age below will need to raise them to 65.

Retirement of Workers

Reg 30 does not include workers such as agency workers or independent contractors when it stipulates that the specified retirement age is fair and not discriminatory, no similar provision is made for workers who do not come within the S.230 ERA but this does not prevent a worker who finds his or her contract terminated on reaching a certain age arguing that he or she has suffered direct age discrimination. Such a termination would therefore need to be objectively justified. Objective justification that is based on the employer's business needs, and that takes account of the worker's particular circumstances, will need to be shown. Note: partners in law firms are deemed 'in employment' for the purposes of the Age Discrimination Regulations and so can bring claims of discrimination if they are dismissed for reaching a certain age.

Dismissals for Other Reasons

Those employees whose health leads to dismissal may find themselves dismissed for capability. If they do not qualify as, disabled under the DDA they now have a second avenue of redress. From 1 October 2006, any dismissal that is not for retirement may give rise to a claim for age discrimination if the worker can show that age-related reasons were behind the employer's decision to dismiss. Dismissals for capability may well overlap with Disability Discrimination Claims and many cases where both are pleaded are anticipated.

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