Magazine article Public Finance

Age of Reason

Magazine article Public Finance

Age of Reason

Article excerpt

Age-related discrimination has been in the news this month as the Employment Equality (Age) Regulations 2006 came into force. These will have wide-ranging implications for employers, who will need to review existing practices and policies to ensure they are 'age-compliant'. In addition, a recent case before the European Court of Justice is seeking to highlight the links between age-related benefits and gender discrimination.

The regulations are designed to protect a wide grouping of people who may loosely be described as 'workers'. They include prospective and existing employees, the self-employed and those applying for or undergoing vocational training, such as students seeking work-related qualifications from a further or higher education college. The regulations even apply to trade unions and professional associations in respect of prospective and actual members. Unpaid volunteers are excluded.

The regulations prohibit both direct and indirect discrimination on the grounds of an individual's age, using existing legal concepts that apply under other areas of discrimination law. There is already a body of case law on harassment and victimisation, which will assist in interpreting the new law.

Unusually, it is possible to justify both direct and indirect discrimination. Justification can be established by showing that the practice or policy in question is a proportionate means of achieving a legitimate aim. For example, it might be justified to screen only employees over a particular age to meet a health and safety duty, based on the likely incidence of problems with that age group.

Another example might be to refuse to appoint someone who would shortly be retiring to a job that requires a long period of training.

However, it is unlikely that the courts will be sympathetic to justifications that are based only on cost savings.

There are exemptions. For example, benefits linked to length of service are allowed provided the length of service qualification does not exceed five years. So, for example, it is possible to offer different sick pay terms to new employees as opposed to those with two years' service. Where five years is exceeded in the length of service criterion, it will still be exempt if it reasonably appears to the employer that inclusion of the length of service criterion fulfils a business need, such as encouraging loyalty or motivation, or rewarding experience.

Therefore, if the employer wishes to offer different sick pay terms between employees of, say, four and six years' service respectively, a business need would have to be identified. …

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