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Frequently Asked Questions

Posted: 29 September 2006

Do the regulations only cover older employees?

No. The regulations cover workers of all ages – young and old.

Can I ask for a candidate's date of birth on the application form?

Yes. But asking for age related information on an application form could allow discrimination to take place. Remove the date of birth/age from the main application form and include it in a diversity monitoring form to be retained by HR/personnel. In addition review your application form to ensure that you are not asking for unnecessary information about periods and dates.

Am I responsible for what an employment agency does?

Yes. If you use a recruitment agency you need to be sure the agency acts appropriately and in accordance with your company's equality and diversity policies.

Do I have to do anything new or different when the legislation comes in?

Yes. Include age in your equality policy. Consider adding all forms of discrimination and harassment (sex, race, disability, gender reassignment, sexual orientation and religion or belief) to your disciplinary rules. These rules should also include bullying.

Make sure all employees are aware (through training, notice boards, circulars, contracts of employment, etc) that it is not only unacceptable to discriminate, harass or victimise someone on the grounds of age, it is also unlawful. Make it clear that you will not tolerate such behaviour.

Individuals should know what to do if they believe they have been discriminated against or harassed, or if they believe someone else is being discriminated against or harassed. This should be included in the grievance procedure.

Reminder: The Employment Act 2002 requires all employers, however large or small, to have both a disciplinary and a grievance procedure.

Check your policies for retirement and redundancy. Upper age limits on unfair dismissal claims and redundancy payments will be removed. There will be a default retirement age of 65, making compulsory retirement below 65 unlawful unless objectively justified.

Give serious consideration to the benefits of flexible working. All employees will also have the right to request to work beyond 65 or any other retirement age set by the organisation. You have a duty to consider such requests.

Must I have an equality policy?

No. However, an equality policy is the best way of demonstrating that you take discrimination seriously and have steps in place to tackle it. The policy should set the minimum standard of behaviour expected of all employees through recruitment right through to retirement. It also spells out what employees can expect from the organisation. It gives employees confidence that they will be treated with dignity and respect, and may be used as an integral part of a grievance or disciplinary process if necessary. If you would like help putting an equality policy in place Acas can help – call our helpline.

Do these regulations cover all workers?

Yes. The regulations apply to all workers, including office holders, police, barristers and partners in a business. They also cover related areas such as membership of trade organisations, the award of qualifications, the services of careers guidance organisations, employment agencies and vocational training providers, including further and higher education institutions.

The regulations also cover anyone who applies to an organisation for work, or who already works for an organisation – whether they are directly employed, work under some other kind of contract, or are an agency worker. You will also be responsible for the behaviour of your employees towards an individual working for someone else but on their premises, for example someone from another organisation repairing a piece of your equipment.

Employees are sometimes harassed by third parties, such as customers or clients. Where possible you should protect your employees from such harassment and take steps to deal with actual or potential situations of this kind. This will enhance your reputation as a good employer and make the organisation a welcoming and safe place to work.

Many organisations provide visitors and visiting workers with guidance on health and safety matters. It may be appropriate to include some comments on your organisation's attitude to harassment.

However the default retirement age and the duty to consider procedure apply only to a narrower group of employees – this does not include office holders, partners, barristers etc. Refer to the regulations for the precise definition.

I am a partner, am I covered by the regulations?

Yes, you are covered by the regulations except for the provisions covering retirement and the right to request. Partnerships will need to objectively justify their decisions on age issues and for retirement. It would be sensible for partners to have clear records of these decisions at partnership meetings to show they meet business objectives, are properly considered and regularly reviewed. Such records may help support any case for objective justification.

No one in my organisation has ever complained of discrimination or harassment so I don't need to do anything new, do I?

People do not always feel able or confident enough to complain, particularly if the harasser is a manager or senior executive. Sometimes they will simply resign. One way to find out is to undertake exit interviews when people leave and to ask them if they have ever felt harassed, bullied or discriminated against in the workplace. If it is possible, exit interviews should be undertaken by someone out of the individual's line of management, for instance a personnel officer.

Discrimination includes harassment which can take place without management being aware of it. Make sure all your employees understand that harassment means any unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended. This includes teasing, tormenting, name calling and gossip and it applies whoever the perpetrator may be. The victim's perception of the effect of the behaviour is also important.

Take all possible steps to make sure employees understand that they and their management teams will not tolerate such behaviour and that they will deal with whoever is causing the problem.

Should I take positive action to promote age diversity?

Your business could benefit from employing people of different ages. The law allows you to introduce positive action measures where you can demonstrate that employees of a particular age are at a career disadvantage or are under represented in the organisation.

What is age discrimination and who suffers from it?

Age discrimination is a prejudice against a person or group of people on the grounds of their age. If this prejudice becomes the driving force behind a decision, it is considered age discrimination.
Although typically associated with the older generations, discrimination can happen to people of all ages. It can involve being passed over for a job or promotion on the grounds that you are too young or because an employer thinks you are too old to do a certain job.

So how do we get protection from this?

At the moment, you don't. The regulations are being introduced because there is currently no way to combat instances of age discrimination. While regulations cover disability, sex, religion or race discrimination, age has so far not been regulated.

And how will this change following the legislation?

The employment equality (age) regulations will make it illegal for employers to discriminate against employees, trainees or job seekers because of their age and ensure that all workers regardless of age have the same rights in terms of training and promotion.

Several tiers of legislation will be introduced, but specifically it will be an offence to deny someone a job, promotion or training in the workplace because they are too young or old.

The regulations have been divided into four categories: direct discrimination, indirect discrimination, harassment and victimisation.

Direct discrimination is unfavourable treatment because of someone's age, while indirect discrimination involves a company's practices having a disadvantageous effect on employees of a certain age.

Harassment is the intimidation of younger or older employees or behaviour which people of a certain age may find upsetting. Victimisation involves the unfair treatment of an individual who has complained of discrimination or given evidence on behalf of someone else that has complained of discrimination.

The legislation will cover all workers, both contracted and self-employed, and those taking part in or applying for employment-related training including further and higher education courses.

Are there any exceptions?

There are a handful of groups that are not covered by the legislation - members of the regular armed forces or military reserve forces are not included as age is seen as an acceptable way to decide a person's suitability to the field of combat.

There is also something called a genuine occupational requirement, whereby a person is required to be a certain age for a job. For example, the role of a character in a play or film, or serving alcohol in a bar or pub.

The regulations will also not apply to goods and services, so insurance companies and health firms will still be able to discriminate on the grounds of age.

What will the legislation mean for employees?

A national default retirement age of 65 will be introduced and employers will no longer be allowed to force someone to retire before then.

There will no longer be an upper age limit for unfair dismissal and redundancy and a statutory redundancy payment will be included in your contract. It will also be unlawful for an employer to place a lower-age limit on a position, unless it can be justified.

All employees will have the right to request to work beyond the age of 65, and employers will have a duty to consider, although not to accept, such a request. This will involve an employee meeting with their employer to discuss the request. An employee will have a right of appeal if they are dissatisfied with the outcome of the meeting. This policy will be reviewed in 2011.

Will the changes impact on my pension?

Occupational pensions are included within the legislation and will not be affected. Personal pensions not provided by the employer, however, will remain under the terms set out by the provider. State pensions are not affected by the regulations.

And what will the legislation mean for employers?

Employers will be required to revise their recruitment and retention policies, as they will no longer be allowed to use age as a consideration in employment, promotion or retirement decisions. They must also update their equality policy to include the new legislation and disciplinary rules, and all current members of staff should be made aware of the implications of the regulations.

The Advisory, Conciliation and Arbitration Service (Acas) has produced a series of guidance notes to help employers prepare for the legislation.

What should I do if I feel I am being discriminated against?

All of the above legislation will not apply until October, so if you feel you are being discriminated against keep a record of any examples and use it to put your case forward following the introduction of the legislation.

It would probably be best to raise the matter with your boss to try and resolve any grievances informally. You would be allowed to have an employee representative or colleague present at the meeting in order to act as a witness. If this fails to resolve the matter you would then be within your rights to bring a claim for age discrimination to an employment tribunal with the possible award of compensation as a result.

 

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