Age

For the purposes of discrimination age does not only mean a person’s actual age, it can also refer to a grouping, e.g., ‘under 25s’, or be relative, e.g. ‘older than us’. The Equality Act does not specify where the comparator in a discrimination claim should come from – it is likely to depend on the context of the complaint.

Examples of age discrimination include: advertising for someone with ‘youthful enthusiasm’, forcing all workers to meet a fitness test which only young people will find easy even though it has no bearing on the job; advertising for ten years’ experience when the demands of the role only require two or three years’ experience; and asking someone how they will cope with being directed by younger people.

It may not be discriminatory to give higher rewards to older workers under a workplace redundancy scheme: however, legal advice should be taken as cases so far indicate ‘it depends on the scheme’. A scheme which has the backing of the workforce might be easier to justify.

A similar response has been given to the question of whether it is possible to use long service as a criterion for redundancy selection. The European Court of Justice ruled in 2013 that it was permissible for employers to contribute greater amounts for older employees to a pension scheme but left it to national courts to determine whether differences in age-related contributions could be objectively justified.

There is a specific exemption in the Equality Act for organisations which provide ‘group risk insured benefits’, e.g. income protection or private medical insurance for employees. An employer can withdraw or cease to offer these benefits once the employee reaches the State Pension age. Other exemptions apply where there is statutory provision, e.g. bar tenders must be over 18 to comply with licensing laws, and it is possible to pay different levels of minimum wage according to age where these have been statutorily defined.

Retirement

The Statutory Default Retirement Age has been replaced with the Employer Justified Retirement Age (EJRA). This means employees can no longer be given notice of retirement due to reaching the default retirement age. It is still possible for an employer to retire people when they reach a certain age and for that dismissal to be fair if the employer uses an EJRA. An EJRA must be a ‘proportionate means of achieving a legitimate aim’. Before the abolition of the default retirement age EJRAs were generally used when an employer wanted to set a retirement age below the statutory default. Examples are where an exceptional level of mental alertness or physical fitness is required e.g. air traffic controllers or the emergency services.

In 2012 the Supreme Court ruled that it is possible for employers to establish an EJRA but they must be able to prove that there is a legitimate aim that is consistent with the social policies of the state. For example, although the objective of staff retention and workforce planning is in an organisation’s best interests it also achieves the social policy aim of sharing employment opportunities across generations. The court also said that if a practice can generally be justified across the workforce then it doesn’t have to be justified for every individual.

If an employer does not have an EJRA in place then any performance issues will need to be addressed through the appraisal cycle. In its guidance, Acas suggests implementing workplace discussions and asking all employees about their short, medium and long-term plans and aims. These discussions do not have to be part of the appraisal cycle but some organisations may find it useful to include them. Tribunal cases have indicated that it is not discriminatory to have a discussion about someone’s retirement plans as it is an essential part of succession planning.

The abolition of the default retirement age does not mean that employees can’t choose to retire at 65. It means that, without an EJRA, dismissal due to reaching a set age is no longer a potentially fair reason (see article 200 for more on fair reasons for dismissal).