The legislation applies to employees of all ages, at any point during the employment relationship (from recruitment to retirement) and provides for the following:
§ It will effectively outlaw discrimination on the grounds of age.
§ It will outlaw victimisation and harassment on the grounds of age.
However, it will also provide a new defence for discrimination: the defence of justification. If it can be shown that the discrimination was a proportionate means of achieving a legitimate aim, then an employer can use this defence against a claim brought against him. Interestingly, it should be noted that the government has removed all guidance on what constitutes a justification defence, but it has made it clear that a very high standard of proof is expected.
In addition, the age cap for claiming Unfair Dismissal has been removed, meaning that those over the age of 65 will be able to make such claims. Also, a retirement age of 65 has been set. Any dismissal for retirement at an earlier age will be deemed unlawful unless justified fully. Retirement at 65 will only be lawful if the correct procedure, which includes a ‘duty to consider a request to continue work’, has been followed.
This process starts with a letter to the employee at least 6 months prior to the intended retirement date of the employee. The employee may then ask the employer to consider allowing him to stay on (this is the ‘duty to consider a request to continue work’) and the employer must subsequently hold a consultation meeting with him to discuss the employee’s future. It is also interesting to note that employees will be able to bring claims of discrimination in all areas of employment including recruitment, benefits, pension provision, promotion and training, as well as dismissal. Also, this is not just a matter relevant to older employees: the discrimination against any age group will be caught by the new Regulations. Commentators have said that the introduction of these Regulations is arguably the biggest event in Employment Law in the last 10 years, and requires a complete overhaul of all personnel policies, including Health Insurance and Retirement Ages.
In addition, to the new rules relating to age discrimination, there are also new rules relating to maternity leave which came into force at the same time. The main change which affects employers is that the distinction between ‘Ordinary’ and ‘Additional’ maternity leave has diminished.
This effectively means that any pregnant employee, regardless of her length of service, will be entitled to a full year of maternity leave. The only differences which remain between the two forms of maternity leave are some slightly different rights on returning to work, but these depend on the length of leave taken by the employee.
The law used to stipulate that if employees wanted to return early from Maternity Leave, they only had to give 4 weeks of notice. In order to assist the employer, that has now been extended to 8 weeks notice. It has been commented that one of the main difficulties for both the employer and the employee during maternity leave is that of keeping up to date with important events and work back at the office. The new Regulations introduce the concept of “Keeping in Touch days”: This is where an employee can agree to work up to ten days during her leave without it affecting her right to be on maternity leave.
It should be noted, however, that there is no legal obligation on either the employer or employee to offer or accept this arrangement, and any pressure from the employer on the employee may be considered a detriment, something which the Regulations deem unlawful.
Although the Regulations have been in force since the 1st of October 2006, they interestingly enough only apply to employees whose expected week of childbirth (or date of adoption) is on or after the 1st of April 2007. Commentators have argued that this has been a more onerous requirement on employers, who may have found that a very new employee has disappeared for a year. However, one potential benefit was that it has ensured that any cover brought in has had a decent period of time to know get to know what they are doing in their new role with the employer.
In addition to the above, the government has also made one or two changes to benefit the employer. An example being that the length of notice an employee has to give if she wants to return early has doubled – a change which acknowledges that employers needs time to make arrangements in such circumstances.
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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.