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DECISIONS AT WORK SHOULD GENERALLY NOT BE BASED ON AGE IN ANY WAY

TECHNICAL & PRACTICE

At present, there is no UK legislation that specifically outlaws age discrimination but further to the adoption by the UK of the Framework Equal Treatment In Employment Directive 2000/78/EC, new age discrimination legislation will be introduced on 1 October 2006.

The government finished its consultation on 'age-specific issues' in October 2003 and published implementing regulations in December 2004. Draft regulations will be published this summer covering the full rights against age discrimination, the provisions on retirement age and proposals for addressing issues of vocational training. These regulations will be subject to further consultation and Parliament's approval before coming into force.

Under the new guidelines, employers will only be able to treat people differently on grounds of age where this can be justified by reference to specific issues set out in legislation; and only if this is appropriate and necessary in the circumstances.

These issues include:

jobs that need high levels of health, fitness and concentration and the need to undergo arduous training;

rewarding long service and loyalty; and - the need for a reasonable period of employment before retirement - where the employee is close to retirement age and the period of training needed for the job would not make the employment period worthwhile.

People who are working - either directly employed or working under another type of contract - will be protected under this legislation, as well as:

those who simply apply for work;

office holders appointed by the Crown and some other paid office holders (these can include company directors and the members of some independent public bodies);

people who are undertaking or applying for employment-related training; and - in some circumstances, people who have left work.

DIRECT AND INDIRECT DISCRIMINATION Direct discrimination occurs when a person is treated less favourably on the grounds of their actual age. The law will also apply to decisions which are made on the basis of a person's perceived age. Indirect discrimination arises when an employer applies an apparently neutral provision equally to employees or prospective employees, but in fact puts people of a particular age at a particular disadvantage. This applies when an individual can show that he or she suffered that disadvantage.

Indirect discrimination will always be deemed to be unlawful except in certain circumstances where it can be justified objectively. In contrast to direct discrimination, the legislation is not obliged to identify specific issues that employers can use to challenge any charges of indirect discrimination that may arise. Instead, employers must show that the provision, criterion or practice was a proportionate means of achieving a legitimate aim.

Harassment will be defined as a circumstance where an individual can show that his or her dignity has been violated or that he or she has been subject to an intimidating, hostile, degrading, humiliating or offensive environment. The perception of the claimant, as well as all other circumstances surrounding the case, will be taken into account by the tribunal to decide whether it is 'reasonable' to conclude that the relevant behaviour amounted to harassment.

Victimisation will be deemed to occur when a person is treated unfairly because they have been involved in making a complaint about age discrimination. Examples of this include situations where an employee is treated less favourably than his or her colleagues because he or she has made an allegation of discrimination, or has supported a colleague's discrimination case.

Protection will not be extended to people who knowingly make false allegations or statements, or who knowingly give false information.

In rare cases, employers will be able to specify that age is a 'genuine occupational requirement' for a certain position and will be able to recruit on this basis without breaching age discrimination legislation.

In light of evidence that certain age groups are at a disadvantage in the workplace, the legislation allows employers to encourage workers from these disadvantaged groups to apply for certain posts or to take up training. However, the employer must not discriminate on grounds of age at interview and selection.

It will be unlawful for a former employee to be placed at a disadvantage after leaving employment due to the employer committing an act of discrimination or harassment while the person was employed. This will be limited to cases where the discrimination or harassment in question arises out of, and is closely connected to, the previous relationship.

The national default retirement age will be set at 65;

this will be the age at which employers may require their employees to retire without justifying their decision. This age limit will be reviewed in October 2011. Retirement ages set by employers for employees aged under 65 will be unlawful under the legislation if this cannot be objectively justified. Employers will need to show that one of the specific aims (see above) has been referred to and that it is appropriate and necessary in the employer's particular circumstances. Employees will have the right to request to work beyond the set retirement age and employers can continue to employ workers above the age of 65.

Decisions about recruitment, selection and promotion should not normally be based on age in any way. It is proposed under the legislation that employers should be able to apply an age limit to recruitment but only if they can justify doing so according to the previously mentioned issues.

The legislation also provides that employers may continue to provide pay and non-pay benefits based on length of service and experience under certain specific conditions, which are outlined on page 42.

LIABILITY AND DAMAGES Employers will be liable for acts of discrimination committed by any person in their employ during the course of employment whether or not the employer knew of those acts. An employer will be able to defend a claim and escape liability by arguing that reasonably practicable steps were taken to prevent discrimination.

A person who feels that he or she has suffered discrimination or harassment will be able to serve a questionnaire to obtain further information. The employer must respond within eight weeks. If the employer fails to respond within the required time period or the replies are evasive or unclear, a tribunal will be able to draw an inference that discrimination has occurred.

A complaint that discrimination or harassment has occurred may be presented to an employment tribunal. There is no minimum length of service necessary to bring a claim. A complaint must be presented within three months of the date of the alleged act of discrimination occurring; a continuing act of discrimination over a period of time will be treated as having been committed at the end of that period or the end of employment. A tribunal may extend the time limit where it considers it just and equitable.

Where a person proves facts from which a tribunal could conclude that an act of discrimination or harassment has occurred, the tribunal will uphold the claim unless the employer produces evidence to prove that he did not commit that discriminatory act.

If a tribunal upholds a complaint of discrimination it will be able to do any of the following which it finds just and equitable:

make a declaration order confirming that there has been unlawful discrimination;

award compensation; and - recommend that an employer take steps to avoid the particular form of discrimination recurring.

With regard to compensation, there will be no limit on the amount that can be awarded. The award may include damages for injury to one's feelings and interest may also be awarded as part of the package.

The provisions relating to unfair dismissal will be changed so that workers of any age can claim that they have been unfairly dismissed. However, retirement at the employer's justified mandatory retirement age or the default retirement age prescribed by Parliament will be a fair reason for dismissal. Financial compensation will continue to be calculated in accordance with length of service, but will not be based on age.

The provisions relating to calculation of redundancy payments will be altered and age will no longer be a factor when calculating any payments due. Workers under the age of 18 will now be able to claim redundancy as well as their adult colleagues.

There will be no upper age limit for entitlement to a statutory redundancy payment, instead entitlement will end either at the employer's normal retirement age or the default retirement age.

Jonathan Exten-Wright is a partner in the employment department of DLA Piper Rudnick Gray Cary.

Email: jonathan. exten-wright@dlapiper. com

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