Age discrimination where are we now, and where are we going?

Written by
Changeboard Team

27 Jun 2013

27 Jun 2013 • by Changeboard Team

Age discrimination - on the rise

The Employment Equality (Age) Regulations 2006 have now been in force for three and a half years, and the number of cases brought to tribunal has steadily increased over this time. The employment tribunal produces statistics each year which include a breakdown of the types of claims brought before it. 

In 2006/07 there were 972 age discrimination claims, but that has increased to 3,801 for the year 2008/09. In terms of awards, in 2008/09 the maximum award for age discrimination was ??90,031 and the average award was ??8,869.

The age discrimination legislation is being consolidated with other discrimination strands in the Equality Act which is due to come into force in October this year, but the principles will remain the same.

Justification for retiring employees

With the default retirement age still in place, but likely to be phased out in the next year or so, its going to be interesting to see what the courts will accept as justification for retiring employees at a particular age. The latest case on this issue puts football referees under the spotlight. Basically, referees are retired at 48, subject to a right of appeal that they be retained. The policy was said to be: "to ensure a high standard of match official; create a career route for match officials of appropriate ability and to supply officials who met FIFAs age and ability requirements." 

The only one of those aims that was found by the court to be a legitimate aim for the purpose of the regulations was the creation of a career route. The courts however found that this could have been dealt with in a less discriminatory way by the use of fitness and competence assessments which had no regard to age.

Retiring employees legitimately

Employers always have to assess whether they have a legitimate aim for retiring employees at a particular age, and whether that aim can be met in a less discriminatory fashion. The default retirement age will be removed at some point and those who have already considered these issues will be best placed to deal with the change.

The courts have also made clear that the age regulations are not there to legislate against the general unfairness of age, but to protect against discrimination as a result of age but whats the difference?

Homer vs. Chief Constable

In Homer v Chief Constable of West Yorkshire Police, the force introduced a requirement that to reach the top level in the area that Mr Homer was working in, a law degree was required. Homer could have got a degree, but then would have retired almost immediately and therefore wouldnt have benefited from the pay rise that went with the post. 

The courts said that this wasnt age discrimination, as what prevented him from benefiting was his imminent retirement; he wasnt prevented from obtaining a degree. He may have had more chance of success if he had argued that the requirement of the degree was in itself age discriminatory as younger people have degrees, but this was not the argument that he made.

Default retirement age legislation

In July 2009 the government announced that it was bringing forward its review of the default retirement age of 65 which was originally planned for 2011, to 2010 due to the change in economic circumstances since the introduction of the provision. Prior to the change of government it was anticipated that the default retirement age would be removed this year, but the timeframe is now less clear.

In January the EHRC recommended the abolition of the default retirement age as part of its report Working better the over 50s, the new work generation which seeks to address the problems of an ageing workforce. The EHRC considers that abolishing the default age will have little impact on extending working life on its own, and that it must be accompanied by a number of other measures which will enable older workers to remain economically active.

These measures include the extension of the right to request flexible working to everyone, better training and career development for the over 50s, an overhaul of recruitment practices to ensure people of all ages are recruited, a media campaign to tackle ageism and promote age positive recruitment and comprehensive health programmes to promote the wellbeing of older workers and any necessary ergonomic adjustments to enable them to continue working.

How can employers prepare for 'retirement'

What is clear is that the default retirement age will eventually be abolished, although this may happen in phases. When this happens it will mean that employers will only be able to compulsorily retire employees if they can objectively justify this. This means the focus will be on whether compulsory retirement is a proportionate means of achieving a legitimate aim. The aims an employer is likely to have will depend on the particular organisation but may be similar to those relied on by BIS when deciding to include the default retirement age in the regulations following its consultation process.

These aims were stated to be to allow employers to undertake workforce planning and avoid blocking jobs for younger workers, provide a target age against which employees could plan their careers and encourage them to save for retirement and to avoid any adverse impact on the provision of occupational pensions and other work related Benefits that the absence of a retirement age would cause.

Alternatively, the aims could relate to the employers specific, economic or business needs, the health and safety of members of its workforce or its training requirements. In any event, the employer would also need to show that compulsorily retiring employees is an appropriate and necessary means of achieving those aims. Employers should document and retain their analysis of the impact of retirement.

The future of retirement

Employers should plan now for dealing with retirement after the default age has gone. Not only will this raise issues of objective justification, but the abolition of the default retirement age will also mean there is a greater focus for employers on performance management, appraisals, career development and succession planning.