We are all nearly a year older since the Age Equality Regulations were introduced last October. But are we any wiser? Nicola Brown and Stuart Craig investigate.
Change of heart on pensions
Just before the Age Equality Regulations (AER) came into force in October 2006, the Government realised that it had not got the pensions exemptions right. This meant that the AER were not extended to pensions until December 2006, leaving time for the pensions exemptions to be extensively amended. These further amendments addressed most of the concerns raised by the pensions industry, but there are still a number of areas of uncertainty, including in relation to flexible retirement.
End of transitional provisions It was not until April 2007 that the provisions relating to retirement came fully into force. Between October 2006 and April 2007 employers could take advantage of the transitional provisions, but now they need to give employees at least six months’ notice if they wish to make an employee retire at the age of 65. In order to avoid the risk of an unfair dismissal claim, employers will also need to notify employees at the same time of their right to request to work beyond their retirement date.
Miscellaneous tidying up
April 2007 was also the time when the Government tidied up a number of other loose ends which had been overlooked in the rush to implement the AER. These include adding age discrimination claims to the list of claims which cannot be brought in the employment tribunal without submitting a statutory grievance, and making it clear that there is no fixed conciliation period for these claims.
Challenges to the default retiring age
The absence of any real protection for those over 65 is one of the most controversial features of the AER. Discrimination against those who have reached the “default retiring age” of 65 is not prohibited. Unfair dismissal claims can also be avoided as long as those dismissed at that age are given the necessary notice and any request to work longer is properly considered.
This feature of the AER is being challenged in the courts by an organisation linked with Age Concern. As a result, the European Court of Justice (ECJ) has been asked to consider whether the AER comply with the EU directive which they implement. Since this case was brought, the advocate general has given an opinion in a similar Spanish case which suggests that the directive has no impact on national retirement ages.This makes a successful challenge to the default retiring age unlikely, but we will have to see whether the ECJ follows the advocate general’s opinion to be sure.
It is still too early for any age discrimination cases to have reached a fully contested hearing, though a number of claims under the AER have been registered. Most of these involve obvious mistakes, like refusing an interview to an experienced lecturer of 63, or stipulating a minimum age of 25 when advertising for a post.
For this reason a recent example from the Irish Equality Tribunal might be more instructive. In that case the tribunal, interpreting similar Irish legislation, concluded that an employer which had insisted that a candidate should disclose his age in order to be considered for a post had committed an act of age discrimination. Although there was nothing wrong per se with asking for a date of birth, the tribunal decided to infer discrimination when the employer failed to progress the application further after it had found out that the employee’s true age was ten years older than it had previously thought.