The age of reason

The age of reason is upon us - or to be more precise, the reason of age, as March saw the publication of the final version of the long-awaited age discrimination legislation. Joining the stable of UK discrimination law, the Employment Equality (Age) Regulations 2006 will be in force on 1 October 2006.


Those who have yet to familiarise themselves with the legislation need not fear, since every law firm in the land is currently working itself up to the unique idea of a seminar or so on the subject. Expectations are high that, unlike the sexual orientation or religious discrimination legislation of 2003, the new law will herald significant changes.


Deriving from the Equal Treatment Framework Directive of 2000, practitioners and clients have had some time to prepare. But until the final version of the regulations were produced, an air of mystery surrounded the ways in which the legislation would operate.


The basic structure has been fairly predictable, mirroring the legislation already in place to protect discrimination on the grounds of sex, race, disability, etcetera. Simplistically, the regulations set out law, making it unlawful directly or indirectly to discriminate in the employment sphere on the grounds of age. Enforcement will be through the employment tribunals and compensation potentially will have no maximum limit. Legislation is also provided specifically to deal with the traditionally defined areas of harassment and victimisation, and in many respects the structure, including the potential responsibility of employers for the actions of their employees, will be familiar to most practitioners.


However, there are also some serious differences. Under race discrimination law, for example, it is not possible to justify direct discrimination, leaving respondents with the argument that the need for a person of a particular race or nationality was a genuine occupational requirement. Under age discrimination law, the defence of justification will potentially apply to both direct and indirect discrimination (provided the action is a proportionate means of attaining a legitimate aim). There is also a specific requirement allowing the use of length of service requirements in providing access to certain benefits (although special provision applies where more than five years' service is needed).


Equally, the question of age discrimination brings specific problems that the regulations seek to address. For example, while in keeping with existing discrimination law, the age regulations will affect not only employment per se, but also the issues of recruitment, terms and conditions, promotion, etcetera. The regulations will also specifically permit discrimination against job applicants whose age is already above the normal retirement age (or 65 if there is no such age), presumably on the grounds that 'retirement dismissals' may be fair in any event.


And it is perhaps this specific area of retirement dismissal that will bring some of the more complex problems that will arise from the regulations. The much- assailed upper age limit that prevents unfair dismissal claims from those aged older than 65 (enter Nash v Mash/Roe Group Ltd [1998] IRLR 168) will now pass into history, being replaced by the potentially fair reason of dismissal by reason of 'retirement'. A totally new structure is built around this, with a new default retirement age of 65 being presumed and a new 'duty to consider' procedure becoming de rigueur.


Essentially, the procedure involves such an employer writing to the employee between six and 12 months prior to the intended retirement date to inform them of their right to request that they work longer. The employee may then, between three and six months before the intended date, make one request to continue beyond that date. Unless the employer agrees to the request (in which case a new intended date is set and the procedure rolls forward), a meeting to consider it will be needed with a written decision (setting out prescribed information) being given 14 days later. The employee may appeal within a reasonable period, with similar provisions applying to the appeal hearing.


The regulations make specific provision for the payment of compensation if the employer defaults, including an award of up to eight weeks' compensation if the employer fails to inform the employee of their rights. More alarming still are provisions that may render a dismissal ineffective (if made before a decision is reached in the above procedure) or render a dismissal automatically unfair (if the employer fails to notify at least two weeks in advance). Failure to follow the procedure may in any event render any other dismissal unfair under the 'usual' rules.


However, it is important for advisers to note that while the procedure must be followed, an employer need not grant the request. There are also transitional provisions dealing with the issue of terminations where notice is given before 1 October 2006 and where expiry occurs after this date but before 1 April 2007 (in which event the employer must 'notify' as soon as practicable after 1 October 2006). It should also be remembered that where the real reason for dismissal is not retirement, the dismissal might still become unfair under standard principles.


The new law is potentially far reaching, not least because it will apply to employer, employment agencies, partnerships, providers of vocational training, trade unions and yes, even barristers. Also, while much of the law is familiar to those engaged in advising on discrimination law, there is much that will prove challenging to the practitioner.


Perhaps chief among these will be the issue of selecting the correct comparator when considering direct discrimination. While a comparator in the regimes of sex and race discrimination is often relatively straightforward to identify, the position with age is much more one of degree. For example, should a comparator for a 59-year-old be a 50-year-old or even a 45-year-old as much as a 21-year-old? Equally, in assessing indirect discrimination, the question of the application of a provision criterion or practice to persons 'not of the same age group' might prove pithy.


It should also be remembered that the burden of proof is reversed in this area of discrimination law (as with sex discrimination) and it will be necessary only for a complainant to show 'facts' from which a tribunal could conclude discrimination in the absence of adequate explanation. After this, the stark glare of the law will focus on the employer, who is required to prove he did not commit the unlawful act.


Therefore, any irrational or illogical decision to remove young or old will prove as much a hostage to fortune as if the person were pregnant or of a particular ethnic group under current law. Potentially, the regulations might have much routine use for most complainants other than the 'in-betweenies', at least until some balance is attained.


The new legislation holds much promise for those employment lawyers who are looking for new sources of work, as much as those who politically champion such worker protections. In discrimination law, the reason (or more accurately ground) of age is very much upon us.


By Darren Clayton, Doyle Clayton, London