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The Employment Equality Age Regulations 2006

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Less favourable treatment 'on grounds of B's age' ... A applies to B a PCP which A applies equally to other persons; and ... Mangold v Helm [2006]IRLR 143 ... – PowerPoint PPT presentation

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Title: The Employment Equality Age Regulations 2006


1
The Employment Equality (Age) Regulations 2006
  • The exceptions that prove the rule?
  • Susan Walker
  • Heriot Watt University

2
General provisions
  • Direct and indirect discrimination
  • Instructions to discriminate
  • Harassment
  • Victimisation
  • Employers liability
  • Post-employment discrimination

3
Direct discrimination
  • Less favourable treatment on grounds of Bs
    age
  • Not on grounds of age to avoid confusion with
    family-friendly policies
  • Separate provision to cover instructions to
    discriminate
  • Includes apparent age

4
Indirect discrimination
  • Reg 3(1)(b)
  • A applies to B a PCP which A applies equally to
    other persons and
  • That PCP puts persons of Bs age group at a
    particular disadvantage and
  • Puts B at that disadvantage
  • Reg 3(3)(a)
  • means group defined by reference to age. May be
    specific age or range of ages

5
Possible PCPs
  • Experience minimum or maximum
  • Length of service
  • Computer skills
  • Health/fitness
  • Qualifications
  • Flexible/long/antisocial working hours
  • Ability to relocate
  • Overlap with other forms of discrimination

6
Justification
  • Applies to direct AND indirect
  • Treatment or PCP is a
  • proportionate means of achieving a legitimate
    aim Reg 3(1)

7
Directive 2000/78Article 6.1
  • Member states may provide that differences of
    treatment on grounds of age will not constitute
    discrimination if
  • objectively and reasonably justified by a
    legitimate aim, including legitimate employment
    policy, labour market and vocational training
    objectives and means are appropriate and
    necessary

8
Art 6.1 cont
  • Such differences of treatment may include
  • (a) setting of special conditions on access to
    employment and vocational training to promote
    their vocational integration or ensure their
    protection
  • (b) the fixing of minimum conditions of age,
    professional experience or seniority in service
    for access to employment or to certain
    advantages linked to employment
  • (c) the fixing of a maximum age for recruitment
    which is based on the training requirements of
    the post in question or the need for a
    reasonable period of employment before
    retirement.
  • NOT absolute exceptions. Must still be
    objectively justified

9
Mangold v Helm 2006IRLR 143
  • German law allowed the use of fixed-term
    contracts for older workers.
  • Aim was to encourage employment
  • ECJ - Aim legitimate but means were not
    proportionate

10
Consultation document examples of legitimate
aims
  • Training requirements of a job
  • Protection of employees health and safety
  • To encourage or reward loyalty
  • Business needs and efficiency
  • Facilitation of employment planning
  • Need for reasonable period of employment before
    retiring
  • Recruiting or retaining older people
  • Not contained in final form of Regulations
  • Must be proportionate response.

11
Common justifications
  • Customer preference
  • Unlikely to be proportionate to have a blanket
    ban. In theory possible if can show genuine
    economic consequences.
  • Cost
  • Unlikely to enough on its own. May be a
    question of degree.
  • Health and safety
  • Blanket ban unlikely to be proportionate. Find a
    solution that is individual

12
Exceptions - GOR
  • Reg 8
  • where possessing a characteristic related to age
    is a genuine occupational requirement
  • Having regard to the employment or the context in
    which it is carried out and
  • It is proportionate to apply the requirement in
    the particular case

13
Length of service benefits (reg 32)
  • Up to 5 years effectively a complete exemption
  • Applies to workers- includes partners and
    office holders
  • Where disadvantaged worker has more than 5 years
    service, it must reasonably appear to the
    employer that using this criterion fulfils a
    business need (eg encouraging loyalty, motivation
    or rewarding experience.)
  • Note 32(7) exemption does not apply where
    benefit is by virtue of ceasing to work

14
Age-related compensation
  • For redundancy payment / basic award
  • Lower and upper age limit removed
  • Taper to 65 removed
  • Other multipliers remain
  • Age limits removed for SSP, SMP, SPP

15
Miscellaneous exceptions
  • Complying with statutory provision
  • Minimum wage
  • National security
  • Positive action to prevent or compensate for
    disadvantages linked to age
  • Enhanced redundancy payments mirroring statutory
    provisions
  • Life assurance cover to retired workers ceasing
    at 65/NRA

16
Pensions
  • Provisions delayed until 1 December 2006
  • The Employment Equality (Age) (Amendment No.2)
    Regulations 2006
  • Non-discrimination rule (Reg 11)
  • most age-related criteria exempted
  • (Schedule 2 Parts 2 and 3)
  • Rights accrued before 1 /12/06 unaffected
  • DTI Guidance http//www.dti.gov.uk/files/file35877
    .pdf

17
Examples
  • Closure of any scheme to new members
  • Maximum or minimum ages for admission
  • Use of age criteria in actuarial calculations
  • Different rates of employer contributions
    dependent on age
  • Bridging pension for men between 60 and 65
  • Length of service exception mirroring Reg 32

18
Retirement exception-Reg 30
  • Employees only
  • Not discrimination to dismiss for retirement at
    65 or lower justified NRA (may be unfair!)
  • New duty to consider procedure
  • Post-65/NRA employees must be treated equally
    except where there is a specific exception
  • Reg 7(4) Recruitment provisions dont apply if
    applicant over 65/NRA or will reach 65/NRA
    within 6 months of date of application.

19
Duty to consider procedure(Schedule 6)
  • Para 2 employer should notify employee between
    6 months and 1 year before intended date.
  • Notify of retirement date and employees right to
    request to stay on
  • Applies regardless of other notification/
    contractual term
  • Continuing duty to give notice up to 14 days
    before retirement date (para 4)

20
Schedule 6 Procedure cont
  • Request to be made between 3 and 6 months before
    retirement (provided employer gives 6-12 months
    notice)
  • Request may be for set period or indefinitely
  • Request in writing and specify it is made under
    para 5 of Schedule 6!

21
Schedule 6 cont.
  • Meeting to discuss the request (unless employer
    agrees to request) within reasonable time.
  • Notify decision as soon as practicable
  • Right of appeal (in writing)
  • Right to be accompanied to meeting and appeal
  • Complaint to tribunal for failure to give 6-12
    months notice up to 8 weeks pay (capped)

22
Unfair dismissal
  • Upper age limit removed
  • retirement is a potentially fair reason
  • If dismissal is for retirement DDPs dont apply.
    Instead new duty to consider procedure in
    Schedule 6
  • Complex provisions for establishing reason is
    retirement.

23
Retirement
  • No definition
  • relevant for unfair dismissal and age
    discrimination
  • New s98ZA-ZH in ERA 1996 (set out in Sch 8)
  • Not retirement if dismissed before 65/ NRA

24
Retirement cont
  • Reason is retirement if employer gives 6-12
    months notice and employment ends on intended
    retirement date.
  • Cannot be retirement if employment terminates
    before intended retirement date.
  • Otherwise onus on employer to establish reason
    (guidance in s98ZF)

25
Fairness of dismissal
  • ERA s98ZG (set out in schedule 8)
  • If retirement is reason for dismissal, it will
    only be unfair if employer fails to comply with
    paras 4,6,7,and 8 of Schedule 6.
  • Normal qualifying service required
  • Minimum basic award
  • Otherwise dismissal is fair.

26
Legal challenges
  • Heyday application referred to ECJ.
  • Potentially affects retirement exception,
    recruitment approaching 65 and justification of
    direct discrimination.
  • UNISON abolition of rule of 85
  • Decision reasonable on grounds of cost .
  • Obiter did not encourage loyalty .Those who
    stayed in service treated the same as those who
    left.

27
Oddities!
  • Fixed period for ACAS conciliation. ACAS have
    indicated will use power to extend
  • Questionnaire possibly can be grievance. Not
    expressly stated not to be.
  • Likely to be amendments in April.
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