Duncan Lewis

A Short Guide to Age Discrimination

Date: (5 September 2011)    |    

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Duncan Lewis:Laws against age discrimination revolve around the overall concept that an employer cannot lawfully discriminate against any of its employees on the grounds of age. While traditionally age discrimination has been associated with older workers, in truth it can affect almost anyone.
The default age of retirement has been 65 for some time, although an official company retirement age could be set above this by any employer. However, starting on 6th April, 2011 the DRA (Default Retirement Age) and the SRP (Statutory Retirement Age) started being phased out, and from 1st October, 2011 an employer cannot forcibly retire anyone unless this can be justified on objective grounds; in these cases, solicitors such as Duncan Lewis may become involved in employer-employee disputes. Between the two dates the DRA could only be used to retire an employee compulsorily if their own date of retirement was prior to 1st October.
From 1st October, 2011 employers can choose to have an official company retirement age but, unlike in previous years, this has to be objectively justified on grounds such as health and safety rather than on the predilections of the directors of the firm. The overall effect of these sweeping changes, which affect all companies, is that employees themselves can make their own decisions about when they choose to retire.
It may be helpful to illustrate the concept of direct age discrimination affecting people who are younger by citing the example of an employer refusing to employ anyone below the age of 40 in the belief that such employees would prove to be unreliable. This sort of direct age discrimination is against the law in the United Kingdom; if they were found guilty, the employer could be fined a substantial amount of money.
Indirect age discrimination is slightly more subtle, and an example of this would be an employer who decides that a new employee benefit scheme or initiative should only apply to employees who have been with the company for more than 10 years, disqualifying the majority of the younger employees from receiving it. The employer might try to justify such an apparently arbitrary decision by claiming that staff retention is the issue being addressed.
An exception to these clear cut cases of age discrimination would be a case where it is an occupational requirement for the holder of the job to be of a certain age; for example, certain government positions have minimum age requirements.
Employers should check that their recruitment procedures are completely non-discriminatory, and this includes such things as ensuring that advertisements for posts are not limited to media outlets largely read by a particular age group, and that the terms used do not imply that only one age group is being sought for a position. Terms such as ‘recent graduate’ and ‘mature’ along with a whole raft of others need to be weeded out; otherwise the company may lay itself open to age discrimination accusations through employment law solicitors.