Age Discrimination Legislation Must Balance Needs of Employee and Employer

Heyday's Reaction is only Tip of the Iceberg

As Heyday says it will take the government to the High Court over age discrimination legislation, UK experts in workplace issues, Croner says that the new law needs to balance the interest of employers.

Heyday says that employers should have to give a reason if a request to continue working from an employee over the age of 65 is not granted. However, Croner says that employers should not have to give a reason as it could potentially catch them out at a tribunal for unfair dismissal.

Gillian Dowling, employment technical consultant at Croner says: "The new age discrimination is shrouded in controversy and it really will be a balancing act between the rights of the employee and the needs of the business. While we are supporting the needs of the over 65s, we don't want to see an extra burden placed on businesses to provide reasons for not keeping on over 65s - under the new law they will now be protected from unfair dismissal and providing a reason not to keep them on could potentially be used against their employer in Court at a later date."

Tip of the Iceberg Gillian continues: "Heyday's reaction to the Regulations today is only in fact the tip of the iceberg. Several aspects of the new law could actually have the opposite effect to that intended. Many people think that the Employment Equality (Age) Regulations will open up employment opportunities for those who need to work past 65. However, this most significant piece of legislation in decades could actually help employers shed their older employees."

" Employers may legally choose not to recruit or retain over 65s; " Those coming up to retirement age need only be kept on if they are vital to the business; " The Regulations will not necessarily open up more employment opportunities, as intended.

Gillian says: "The new law is supposed to help older employees. There is a growing need to change the focus of recruitment in the UK because of a diminishing number of young workers, but also because older workers are finding it necessary to work longer than they had originally expected. Older people have new financial concerns to consider, such as pension issues and increased family costs, such as supporting children through university and helping them get a foot on the increasingly expensive property ladder.

"But there is nothing in the legislation to encourage employers to take on or retain people of 65 or over. In fact, the opposite is true."

Regulation 7 Regulation 7 specifically enables employers to refuse job applicants if they are over the employer's normal retirement age or 65 - or even if they are coming up to that age.

On retirement, whilst every employee will now have the right to request working beyond the company's retirement age or 65, and the employer has a duty to consider that request, there is no obligation on an employer to grant it. An employer does not even have to give written reasons for this and may dismiss an employee at their normal retirement age or 65, providing they have followed the duty to consider procedure to the letter.

The new law will incentivise employers to shed older employees Under the new law, employers who choose to keep on employees over the age of 65 will have to make additional provisions for them, including:

" Offering older employees the same benefits as the rest of the workforce.

" Offering benefits such as statutory redundancy pay and statutory sick pay. Other benefits such as life assurance will also have to be provided, unless the employer can objectively justify not providing them, which may be difficult to do.

" Providing the same fair reasons for dismissal such as capability, redundancy etc. for the over 65s as they currently do for the remainder of the workforce. A dismissal can be made by reason of retirement, but employers will have to follow the duty to consider procedure again, meaning that they will have to decide at least six months in advance to retire the employee.

The new law therefore will not open up opportunities for older employees, and may in fact encourage employers to shed those at the age of 65.

About Gillian Dowling Gillian Dowling, employment technical consultant at Croner is an expert on new legislation, particularly employment law and has been with the company for ten years. Prior to that she worked in private practice as a solicitor. Gillian is also a contributing author of articles for several business publications.

For more information visit www.croner.co.uk

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