The Coming of Age From recruitment to retirement and everything in between – on 1st October 2006, the Employment Equality (Age) Regulations (Northern Ireland) 2006 come into force bringing the most important new employment rights for decades. The Regulations will:- Prohibit age discrimination, including direct and indirect discrimination, harassment and victimisation. Introduce a national default retirement age of 65 (to be reviewed in 2011) and prohibit retirement ages below 65 unless objectively justified. Remove upper age limits in respect of unfair dismissal and redundancy claims. Require employers to inform employees in writing at least 6 months (and no more than 12 months) in advance of their intended retirement date and of their right to request working beyond that date. Impose upon employers a duty to consider an employees request to continue working, which includes meeting with the employee and giving the employee a right of appeal against the decision.
Age discrimination or ageism whether against the old or the young does not yet have the social stigma of racism, sexism or homophobia and it is perhaps all too easy to allow someone’s age to influence how we perceive them and in turn how we treat them. A 20 year old exceeding his targets may be considered a “high flyer” or “hot shot” whereas a 40 year old in the same role and performing at the same level may not inspire comment or praise. This may well be an example of an “ageist” attitude. A senior employee referred to, however fondly, as “over the hill” or a young employee jokingly referred to as “wet behind the ears” come October 1st may have a potential claim for harassment. As a result of the new Regulations it is expected that a significant number of age related claims will be brought before the Industrial Tribunal as has been the experience to date in other countries in which comparable legislation is already in force. Defences are provided for; however the Tribunal will have the power to award unlimited compensation in successful claims and it is therefore essential that the ethos behind the Regulations is embraced and steps taken to change traditional perceptions. In addition to familiarising themselves with the Regulations (too detailed to be analysed comprehensively in this article), reviewing contracts of employment and extending equal opportunities and harassment policies to cover age, there are practical steps which employers should also take to minimise the risk of claims:- Recruitment · When advertising positions remove age limits, avoid specifying a minimum length of experience, use neutral language that appeals to a wide age group, avoid hidden messages through photographs/pictures and publish in publications that reach a varied age group. · Avoid asking for age or date of birth on application forms, instead include this information on monitoring forms and make use of this in respect of successful candidates to provide an age profile of the workplace. · Application forms should also avoid asking for unnecessary information about periods and dates. · Ensure that specialist recruitment programmes, for example, graduate schemes, are open to all ages. · Check that any recruitment agency used does not exclude people because of their age. Selection · Focus on skills, do not make assumptions about capability or medical fitness based upon age, and ensure that those responsible for selection and interviewing are trained in equal opportunities. · At interview, use a panel made up of people of different ages. Ask job related questions and use selection criteria. Benefits · Ensure that any pay or benefits policies are not based on age. · Ensure that any benefits which take into account service of more than five years can be justified as fulfilling a genuine business need, for example, encouraging loyalty. · Check that pension benefits fall within the new regulations. Promotion · Make promotion opportunities open to all employees and avoid a minimum or maximum cut off age. · Promote on the basis of performance rather than age or length of service. Training · Training should be open to all no matter what age. Redundancy · Base redundancy decisions on job-related criteria and business needs. · ‘Last in first out” is not necessarily the best approach · Consider voluntary redundancies and alternatives to redundancy Retirement · Put in place procedures to deal with retirement – ensuring that they comply with the legislative requirements (outlined briefly above) and diarise retirement dates accurately. Failure to follow the procedure may lead to an automatic finding of unfair dismissal. · Ensure that the refusal of requests from employees to continue working beyond retirement age is dealt with consistently - it will be good practice to set out reasons for the decision. · Consider alternatives to stopping work altogether, for example reduced hours or job sharing. · Encourage older employees as they near retirement to mentor other staff to pass on skills. The coming of age discrimination is just around the corner and employers should act now to protect themselves. Louise Butler is a Solicitor and part of the Employment Law team, McKinty and Wright, Solicitors. Tel: 028 90246751 | 
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