Coming of age: The Employment Equality (Age) Regulations 2006


'Hope I get work before I die,' The Who nearly famously sang, in what would have been an impressive forecast of our latest discrimination law challenge by more than 35 years.



The much-awaited age discrimination law, in the form of the 2006 regulations, was born on 1 October. A child of the European Equal Treatment Framework Directive and the government's consultation papers, the law promises much, and for the practitioner is sure to be a somewhat livelier piece of legislation than the sexual orientation and religious discrimination regulations of 2003 (also spawned by the directive).



The age regulations, for the first time, offer protection in the employment sphere from less favourable treatment to those of each generation and bring to an end the easier part of giving discrimination law advice - the general proposition that if the subject is a white, able-bodied male (contract and unfair dismissal aside) he is usually toast.



Coming after the growing personal pension crisis, this legislation could not have come too soon for some. With a new normal retirement age of 65 being required in all but the most unusual cases, and an ability to request an extension of the retirement age as it arrives (through the new duty to consider process), the children of the 1940s and 1950s who find themselves 'unemployable' finally can hope for a decent chance of being considered sensibly for a job (or keeping the one they have). Not only that, but they may also have a chance to hold it for long enough to allow them (and society) to benefit from their skills and experience, and to make up some of the gap in their pension funds.



Conversely, the law promises that those who are younger will have the right potentially to complain about lack of promotion or access to more senior positions in an organisation, where experience is, stereotypically, often seen as a prerequisite.



It necessarily works in two directions, outlawing all discrimination on the grounds of age. Hence it protects both young and the younger (in deference to the new law, let us call them 'rare') and the old and older (or 'well done'), as well as those 'medium rare' and those somewhere in between or in shades of each. And here the problems begin.



As with the older discrimination laws, the victim must ordinarily be able to show less favourable treatment to a comparator to succeed in a claim. With gender, for example, this is often easy; with age things are much more complex. After several years of debate, we are left, in essence, comparing the role of one generation (or more accurately 'age group') in an organisation with another.



What is a 'generation' of people? Is a shared love of Dana or Bananarama sufficient? Do generations come in tens - 40s, 50s, 60s and so on? No doubt we will gradually clarify such questions through case law, but this is clearly going to prove problematic for some time, especially for those who are currently 'medium rare'.



Equally, the twin objectives of protecting those who were previously forced to retire at, say, age 55 (to make space for the hungry and less 'well done' beneath), while at the same time ensuring the young and 'rare' get a fair crack of the whip, can seem, at best, contradictory.



The new default retirement age of 65 (to which we can all now aspire) will also bring troubles. For a start, there is the question of many employers having now to change their contractual terms to adopt the new and, for some, higher retirement age (assuming they cannot justify a lower age, which will prove difficult in practice). Those of us becoming increasingly 'well done' will remember aspiring to ever younger retirement ages, and this sea-change in the mood of what is and is not a benefit to us may prove rather challenging as pension schemes and employers gear up for longer periods in the workplace.



More significantly for those in private practice, however, may be the impact of the retirement provisions on those who are equity partners (as well as some salaried partners who are not employees), since the 'exclusion for retirement' provisions of regulation 30 (which effectively allow compelled retirement at age 65) do not apply to such partners, but the general rule against discrimination on the grounds of age do apply to partnerships under regulation 17. Consequently, those faced with very 'well done' or indeed 'over-done' partners will be left with the need to justify their forced retirement or expulsion, leaving some perhaps with a top-heavy structure and little redress. This is not aided by the need to consider fairly the not-so-well-done who are looking for partnership, and who may complain of discrimination against in the 'arrangements' for deciding whether or not they receive that appointment. The fact there is likely to be no space may assist under the regulations, but it will not resolve the practical problems firms might face.



Those skilled at writing job advertisements and descriptions might expect a pay rise as their job difficulty increases. The rules will apply to recruitment and access to employment, so gone must be words such as 'energetic' (suggesting youth) and 'experienced' (age).



The new law is undoubtedly welcome, and can and will offer real social advantage. Undoubtedly, there are those who have much to offer and who need the protection. However, the delays in its introduction (the pensions provisions of schedule 2 have even now been deferred until the end of the year, pending a rethink) are the hallmark of the degree of difficulty of this subject.



Unlike gender and race, the factor of 'age' is something we all possess but that will change for us all over time. If we live long enough, we will all have been young and old, and through these transitions it will make all of us of the same 'generation' identical. This is something that perhaps makes the subject unique among discrimination laws, and that will present unique challenges to lawyers in the field.



For lawyers of a certain age, this may prove tiresome. Who? Well, perhaps I am talking about your generation. Whatever that means.



By Darren Clayton, Doyle Clayton, London