Andrew Egan, a specialist employment lawyer with solicitors, Charles Lucas & Marshall explains why age will no longer be any excuse.

The European Union Council of Ministers has adopted the Employment Directive on Equal Treatment. It requires all 25 EU Member States to introduce new legislation prohibiting direct and indirect discrimination at work on various grounds. Age has been highlighted as one of them.

There is an obligation on the UK government to implement legislation to prohibit age discrimination in employment by October 2006.

Direct age discrimination will be covered i.e. when a decision is made on the basis of a person’s actual or perceived age. Indirect age discrimination is also covered which happens when a policy or practice applies to everyone but causes disadvantage to a certain group (such as younger or older people).

Exceptionally, treating people differently on the grounds of age may be potentially allowed, for example in arrangements for retiring staff and the ability to determine pay and non-pay benefits on the basis of length of service or experience. However, employers must be able to justify doing so. Thus, even the age-based practices that continue will be subject to there being exceptional circumstances, which justify the different treatment. What is lawful will become clear with time.

This area of law is obviously ripe for future claims as even the default retirement age itself, set at 65 is controversial. As always, prevention is better than cure and employers would be wise to carry out age audits considering all aspects and stages of employment such as recruitment, promotion and retirement, in order to minimise possible claims.

Employers should also ensure that their age-related policies, advertisements and benefits are experience-related rather than age-based, because if not they will soon be outlawed.

Less obvious practices will also need examining including recruitment, promotion opportunities, advertising and redundancy selection procedures.

Employers are well advised to set their own normal retirement ages at as late as possible, steering away from early retirement and making sure that retirement policies are based on business needs. It will also be good practice to abolish any age related pay scales.

We are still uncertain of the exact shape of the legislation that will be in force in October 2006.

However, we can be sure that the coming age discrimination laws will have a major impact on the way we live as, unlike our American counterparts, British employers and their lawyers spend a great deal of time trying to comply with discrimination laws.

In the future discrimination on grounds of age will be unlawful and employers will have to fall into line with other age friendly employers such as B&Q who have a diversity policy which encourages employment of people of all qualifying ages including many employees over the age of 50.

For more information contact Andrew Egan on 01793 511055 or andrew.egan@clmlaw.co.uk