The Employment Equality (Age) Regulations 2006 introduce sweeping changes and could pose problems for any employers who have not prepared for it because the changes are so significant.
"Arguably these regulations are the single most important development in discrimination law in the last 30 years," said Ashley Norman, the head of equality & diversity at Pinsent Masons, the law firm behind OUT-LAW.COM. "The impression we have been getting from clients is that whilst there is a high level of awareness about the legislation, considerable uncertainty exists about the detail and implications for employers. Many organisations are still struggling to understand how the legislation will affect them."
The Regulations order that no discrimination on the basis of age should take place in a company's recruitment, promotion, training and provision of benefits to staff. They will also introduce new concepts such as a duty for employers to consider an employee’s request to continue working beyond retirement and a requirement for employers to give written notification to employees at least six months in advance of their intended retirement date to allow employees to plan for their retirement.
"There is plenty of scope for employers to fall foul of these new rules if they are not aware of the detail of this new employment legislation," said Robin McIlroy, an employment lawyer with Pinsent Masons. "My own suspicion is that we will see most cases in relation to age discrimination in recruitment since employers often do have a age criteria in mind when they are recruiting. Generally employers expect to fill more junior positions with younger candidates and more senior positions with applicants above the age of 35 but below 50."
"In order to bring a successful Employment Tribunal claim a job candidate will need to have some evidence that age could have been the reason that they did not get the job," said McIlroy. "The employer will then have to prove that they did not discriminate against the applicant. If the employer has no transparency in the recruitment process, that defence will be so much harder to prove."
There are exemptions to the law. The minimum wage will still be lower for people under 21 than people over it, which Trade and Industry Secretary Alistair Darling said was within the new law. It will also allow for discrimination when there are safety concerns. "If someone runs an offshore diving company they will be entitled to say to an 80-year-old man that they don't think it is such a good idea," he told BBC Radio 4.
"Employers will be able to potentially justify age discrimination if they can show that the less favourable treatment was objectively justified," said McIlroy. "Just what can be objectively justified will depend on the facts and circumstances and we will see much interpretative case law in the coming months."
"The regulations say that to objectively justify age discrimination an employer needs to be pursuing a legitimate aim – such as encouraging loyalty, rewarding experience or maintaining health and safety - and the way in which this aim is pursued must be proportionate. It is not difficult to foresee Employment Tribunals all over the country grappling with these issues before very long," she said.