Draft age discrimination legislation published

In July 2005, the Department of Trade and Industry published draft Employment Equality (Age) Regulations for consultation. The Regulations are intended to implement the age discrimination provisions of the EU framework equal treatment Directive, and are due to come into force in October 2006.

On 14 July 2005, Alan Johnson, the secretary of state for trade and industry, launched a public consultation on draft Employment Equality (Age) Regulations which aim to prohibit unjustified age discrimination in employment and vocational training. The draft Regulations are intended to implement the age discrimination provisions of the EU framework equal treatment Directive (2000/78/EC) (EU0102295F). The move follows the government’s December 2004 announcement outlining how it proposed to deal with the politically sensitive issue of employers’ mandatory retirement ages (UK0501103N), and extensive previous consultation on the UK’s approach to outlawing age discrimination (UK0405102N).

The draft Regulations set a default retirement age of 65. This means that it will not constitute age discrimination if employers retire employees at or above the age of 65. Employers will be free to continue employing people beyond the default age, but retirement ages below 65 will in general be outlawed, unless they can be objectively justified.

The draft Regulations also:

• introduce a new duty on employers to consider an employee’s request to continue working beyond retirement; and

• require employers to inform employees in writing, and at least six months in advance, of their intended retirement date, and their right to request to work beyond that date.

The legislation will remove the upper age limit for unfair dismissal claims and redundancy payments. However, retirement will not constitute unfair dismissal if it is a genuine retirement, on or after the age of 65 (or a lower retirement age, if justified), and the notification requirements and duty-to-consider procedure have been followed.

The legislation will also:

• remove age limits for statutory sick pay, maternity pay, adoption pay and paternity pay; and

• include provisions designed to allow the continuation of some service-related benefits as well as most age-related rules and practices in occupational pension schemes.

In the longer term, the government’s aim is 'to move to a position where business does not need to rely on a default retirement age'. In 2011, the government will review the case for having a default age of 65. According to Alan Johnson: 'If the evidence shows that we no longer need the default retirement age we will abolish it.'

The Confederation of British Industry (CBI) said that the draft legislation would be viewed by employers as 'a workable and commonsense approach'. John Cridland, the CBI’s deputy director-general, said: 'In a tight labour market, employers want to retain skilled and experienced older staff who are keen to carry on working. The latest drafting of this landmark legislation . . . will reassure businesses, because it takes account of their need to plan and operate effectively. The new rules set out a clear framework for companies and their employees to follow when planning for retirement.'

However, the reaction of the Trades Union Congress (TUC) was more critical. TUC general secretary Brendan Barber said: 'These regulations are clearly an advance for older workers, but they could have gone much further by ending arbitrary age-based retirement. We are also concerned that the right to request to work beyond employer-set retirement ages is too weakly drawn, and will monitor its implementation carefully. While we welcome any advance in employee rights, this extremely cautious response to the European Directive is a missed opportunity to really extend choice by giving people far more control over not just when they finally give up work, but to establish new routes to retirement.'

The consultation period closes on 17 October 2005.

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