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

The Government finished consultation on age specific issues in October 2003 and published implementing regulations in December 2004.

Draft regulations will be published over summer 2005 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 in October 2006.

Government proposals
Treating people differently because of age
Employers will only be able to treat people differently on the ground of age where this can be justified by reference to specific aims set out in legislation and only if this is appropriate and necessary in the circumstances.

Examples of specific aims:
• health, welfare and safety - eg. protection of young workers;
• facilitation of employment planning - e.g. where a business has a number of people approaching retirement age at the same time;
• the particular training needs of the post in question - e.g. air traffic controllers who need high levels of health, fitness and concentration and need to undergo arduous training;
• encouraging and rewarding loyalty;
• 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.

Who will be protected?
• People who are working: whether they are directly employed, or working under another type of contract, such as agency workers and some self-employed people;
• People who 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 undertaking or applying for employment-related training;
• In some circumstances, people who have left work.

Unlawful Acts
Direct discrimination
This will occur when a person is treated less favourably on the grounds of a person's chronological age.  The law will also apply to decisions made on the basis of a person's perceived age.

Indirect discrimination
This will arise when an employer applies an apparently neutral provision equally to employees or prospective employees, but it puts people of a particular age at a particular disadvantage, and an individual can show that he/she suffered that disadvantage.

Indirect discrimination will be unlawful except where it can be justified objectively.  In contrast to direct discrimination, the UK is not obliged to identify specific aims that employers can use if challenged on indirect discrimination.  Instead employers must show that the provision, criterion or practice was a proportionate means of achieving a legitimate aim.

Harassment
Harassment will be defined as 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
This will occur when a person is treated unfairly because they have been involved in making a complaint about age discrimination.  Examples of this include where an employee is treated less favourably than his colleagues because he has made an allegation of discrimination, or where he 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.

Occupational requirements
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.

Positive action
In light of evidence that certain age groups are at a disadvantage in the workplace, the legislation will allow employers to encourage workers from age groups at a disadvantage to apply for posts or benefit from dedicated training.  However, the employer must not discriminate on grounds of age at interview and selection.

Discrimination after employment
It will be unlawful for a former employee to be placed at a disadvantage or harassed after employment because the employer committed 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.

Retirement age
The national default age will be set to 65; where employers may require employees to retire without justifying their decision.  This will be reviewed in October 2011.

Retirement ages set by employers for employees of less than 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.

Recruitment, selection and promotion
Decisions about recruitment, selection and promotion should not normally be based on age.  It is proposed that employers should be able to apply an age limit to recruitment but only if they can justify doing so according to specific aims (see above).

Pay and non-pay benefits
The legislation provides that employers may continue to provide pay and non-pay benefits based on length of service and experience if they can justify doing so in accordance with the specific aims (see above).

Liability and enforcement
Employers will be liable for acts of discrimination committed by any person during the course of employment whether or not the employer knew or approved of those acts.  However, an employer will be able to defend a claim and escape liability by arguing that reasonably practicable steps were taken to prevent discrimination occurring or re-occurring.

Questionnaire procedure
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 8 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.

Eligibility and time limits
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 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, i.e. the date of the last act complained of, or, the end of employment.  A tribunal may extend the time limit where it considers it just and equitable to do so.

Burden of proof
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.

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

1. Make a declaration order confirming that there has been unlawful discrimination
2. Award compensation
3. Recommend that an employer take steps to avoid the particular form of discrimination reoccurring.

With regard to compensation at 2. above, there will be no limit.  The award may include damages for injury to feelings and interest may be awarded.

Impact on other Employment Claims
Unfair Dismissal
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.

Redundancy
The provisions relating to calculation of redundancy payments will be altered and age will no longer be a factor when calculating the payment due to the worker.  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 UK LLP. jonathan.exten-wright@dlapiper.com / www.dlapiper.com

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