Owen Warnock, Eversheds:†Legislation to outlaw age discrimination arrived with quite a fanfare in October 2006, so, one year on, how have employers and employees fared in the new legal landscape?
The most recent Tribunal Service statistics revealed the first flurry of age discrimination claims. While only 972 tribunal cases have been started, this is unlikely to reflect the significant number of cases that are yet to filter through the system.
The most contentious issues sparking claims in this area are retirement and redundancy and, with the current wobble in the City and uncertainty over the legality of the UK’s retirement procedure, this trend is expected to continue.
When the legislation first came into force, Eversheds’ own research identified that employers were concerned by a number of grey areas in the regulations. With the Heyday case, which challenged the legality of enforced retirement at age 65 years, still waiting to be heard this lack of clarity in the regulations continues – particularly for public sector employers. European jurisprudence normally regards all public sector employers as already being bound by the true intent of the directive even if the UK regulations are wrong, so this could leave public sector employers facing thousands of backdated claims for age discrimination.
Consequently, employers in the public sector face many more months of uncertainty until there is a ruling on the Heyday case. For now, the only totally safe, but unrealistic, course of action for a public sector employer is not to require any employee to retire unless he or she wants to, and to eliminate any direct age rules unless they are expressly permitted by the regulations (for example, on pensions and redundancy payments).
Looking ahead, we anticipate an upturn in the level of tribunal claims on this year’s figures as grievances work their way through the system. For employers, there is a limit to the extent to which they can stamp out discriminatory behaviour among staff and, arguably, age discrimination is perhaps the most difficult as some of the stereotypes about older and younger people are true for many in each age group. However, employers who proactively demonstrate they are adhering to regulations will find they have much stronger tribunal cases.
Owen Warnock, employment law partner at Eversheds