For employers - FAQs

The answers provided in these FAQs do not constitute 'legal guidance' nor are they a statement of Government views.

Are we be able to continue our graduate recruitment scheme under the new regulations?

The Regulations do not outlaw graduate recruitment schemes but you should ensure that ‘graduate’ does not automatically or inadvertently equate to ‘young’. You should make the process ‘age neutral’ by seeking and welcoming applications from candidates regardless of their age. It is also a good idea to ensure that you are using other ‘age neutral’ means to recruit to these positions as well.

Therefore you need to ensure that the language you use in your recruitment adverts and person specs does not imply you are seeking candidates of a particular age – unless you can objectively justify it as being part of a ‘positive action’ programme aimed at redressing imbalances in the age profile of your workforce.

We are a small business and prefer to employ older, more mature workers because they have a stronger work ethic, are more committed and reliable. Why should we be forced to offer jobs to younger, less dependable people?

The Regulations are not designed to force employers to take on jobseekers who are clearly not up to the role - however they are designed to challenge existing assumptions, stereotypes, myths and prejudices which use age as a ‘proxy’ for suitability.

There are nearly 9 million people in the UK currently aged between 50 and state pension age, by no stretch of the imagination do all of them have a strong work ethic, or are necessarily more committed, loyal or reliable than all younger jobseekers.

Likewise not all ‘younger workers’ (however you define that age group) have a poor work ethic, are immature, unreliable, uncommitted or likely to give in their notice at the drop of a hat after you have spent money training them.

Even when it comes to the question of ‘experience’, you cannot necessarily automatically rely on someone’s age to gauge how much experience they may have gained.

The Regulations are about opening employers’ ‘eyes’ (and arms) to the widest range of candidates – not a pool narrowly defined by date of birth.

Our company’s redundancy payment scheme is more generous than the Government’s statutory minimum scheme but there is no differential between people of different ages – they all get the same (2 weeks for every year of service). Can we continue with this even though it doesn’t match the statutory scheme?

This is potentially problematic. An ‘unintended consequence’ of the way the Regulations are drafted is that employers who have implemented more generous and age-neutral redundancy schemes are likely to fall foul of the Regulations – if challenged.

The Regulations of course refer to the Statutory (Minimum) Redundancy Payment Scheme so the fact that you have a more generous scheme is not the problem. The problem is that you are not ‘mirroring’ the banded age based payments used in the statutory scheme.

If you decide the risk of challenge is too great and that you need to change your scheme, then remember that if it is written into your employees’ Terms and Conditions you will need to consult with them before introducing any change.

Who isn’t covered by the new Age Regulations?

The regulations do not apply to volunteers (unless their volunteer status with your organisation is part of a ‘work-experience’ programme), members of the armed forces and reservists.

Are we lawfully able to maintain the minimum and maximum ages we apply to employees who want to join our company’s pension scheme and can we still make different age-related contributions?

The Regulations contain a fairly wide range of exemptions applying to the age-based rules which are typically found in company pension schemes. In December 2006, when the section of the Regulations dealing with pensions came into effect, the DTI published specific guidance on this topic.

(see: http://www.berr.gov.uk/files/file35877.pdf)

Employers are able to apply minimum and maximum ages for membership of a company pension scheme but are not allowed to set a maximum age for contributions to the scheme. Although it possible to set a maximum number of years for pensionable service.

As far as contributions are concerned, age-based contributions to pension schemes are permitted - if they are aimed at producing an equal outcome in pension benefits.

Is it true that rejected job applicants can send in a questionnaire asking for information which we have to respond to?

Yes, it is. Although there is no compulsion on the employer to respond to the questionnaire, the DTI have warned employers that it they fail to reply within 8 weeks or they reply in an “evasive or equivocal manner, without a reasonable excuse, a court or tribunal may draw adverse inferences from that, should the complainant bring proceedings against him/her.”

Are we still able to state the number of years’ experience we are looking for from the job candidate?

The Regulations do not prohibit you from doing so, but you are better advised to try to translate the experience requirement into the level of skills and competencies you are looking for from the candidate.

Remember you may be challenged on this point so you would need to be able to demonstrate why ‘x’ number of years’ experience really were needed in order to be able to do the job from Day 1.

It appears to be a widely held view amongst employment lawyers that it might be easier for an employer to justify a smaller number of years in any experience requirement rather than a larger one.

We use assessment centres and psychometric testing as an integral part of our recruitment and selection processes. It has been suggested to us that these may indirectly discriminate against certain age groups? Is there a potential problem?

Yes there could be. It is certainly the case that the majority of older candidates will be unfamiliar with these techniques. You could help mitigate the issue by sending job applicants information about your recruitment and selection processes in advance, perhaps together with a sample psychometric test so they know what to expect and are prepared.

We are a large, multi-sited organisation with our own central HR Department but line managers at our various sites do get very involved in recruitment and selection, appraisal, training, redundancy and retirement decisions. We can’t afford the time, let alone the money to train them. What’s the risk?

The risk is large and, the compensation costs potentially unlimited – so might be the damage to your organisation’s reputation and business.

Relatively few line managers have been given sufficient training to perform the HR-related roles they are called upon to perform nowadays. Not only they, but you, will be potentially liable for any age discrimination committed, or left unchallenged or unchecked, by your employees.

Unless you can show you have done as much as was practicable to prevent your employees from committing age discrimination, you run the risk of being judged to have been vicariously liable for their acts.

It’s not a question of not being able to afford to train your employees (not just line managers), it’s a question of not being able to afford not to train them.

In countries which already have age discrimination laws, age cases make up a substantial proportion of the total discrimination cases brought against employers and others.

There are a growing range of materials available to help you train your employees – many are available as e-learning packages. These include the ‘Be-Ready’ package from the Age Partnership Group and the Age Positive Team (see useful links).

We are a High Street fashion retailer which sells primarily to teenagers and young adults. We want as much as possible for our staff to match the ages of our customers. Can’t we put that forward as a reason for not taking on lots of old codgers?

You could certainly try to claim that it was a ‘Genuine Occupational Requirement’ (GOR) for staff working in your stores to match the age groups of your customers. However, the chances are strong that you would lose any case brought against you by an older jobseeker you’d rejected.

In all the rounds of consultation leading up to the drafting of the final Regulations, the only example of a GOR to emerge for ‘age’ which was thought might be valid applied to casting actors to play roles which demanded particular ages e.g. a young teenager to play a ‘Harry Potter’ or a ‘Dorothy’ type role or an older actor to play King Lear or Miss Marple.

It’s expected that a case trying to establish a wider range of jobs which do have an age-related GOR is likely to be brought fairly early on. Until that happens, proceed on the basis that recruitment to your stores should be age-neutral – who knows, you might find that it’s not the end of the world after all and that your sales do not plummet.

As part of our company’s appraisal system we rate the ‘potential’ of all our employees. The rating they receive has an impact on salaries, bonuses and opportunities for promotion. Isn’t it only natural that the closer our older workers come to retirement, the more likely it is that they will receive lower ‘potential’ ratings?

If you are using the individual’s age to come to conclusions about their potential, then you are probably acting unlawfully. You stand a high degree of risk of being successfully challenged by disadvantaged, older employees.

We are a leading edge, high performing company and we only recruit graduates to all but our most menial roles. Is this going to be a problem in future?

Potentially it is. Requiring new hires or internal candidates for particular positions to be graduates could be considered as indirect discrimination. It is far less likely that older job applicants will be able to comply with it.

Therefore,you will need to objectively justify your policy and be able to show it is in pursuit of a legitimate aim, is proportionate and that there is no less discriminatory way in which you could achieve that legitimate aim.

But a Tribunal might take the view that ability and practical experience achieved through working in your sector is as important an indicator of a good potential employee as the possession of a degree.

Is it true that we don’t have to give any reason for turning down requests from employees to go on working on past the new default retirement age?

Yes, it is true. However in the interests of good workforce management and staff motivation you may well conclude that to summarily dismiss such requests is counterproductive. The Acas guidance on this matter is that reasons should be given.

As the Regulations are forcing us to increase our organisation’s current retirement age of 60, can we introduce physical testing of all employees over the age of 60 ?

Not unless you can justify what is clearly direct age discrimination as not only being in pursuit of a legitimate aim but also as being a proportionate way of achieving that aim. If you want to introduce physical testing you should do it for all your workforce – irrespective of their age.

Whilst that is obviously going to be more expensive to do, you are unlikely to be able to justify limiting the testing to one specific age group if you are basing the justification for doing so on cost alone.

What do we need to do about informing employees of their right to request to work on who are approaching their 65th birthday?

Organizations need to decide what their policy about retirement ages is going to be. Before the Regulations came into effect, nearly 6 out of 10 UK firms had no fixed retirement age for their employees. Many of the well-known ‘age friendly’ employers had already, or have subsequently, decided to scrap fixed retirement ages altogether - seeing it as part of a deliberate strategy to become an ‘employer of choice’ to help give them a competitive advantage. Others have introduced a later retirement age than the new National Default Retirement Age (NDRA) of 65 – and some may continue to try to maintain an earlier retirement age, although they will have to be able to objectively justify it as “a proportionate way of achieving a legitimate aim” if challenged.

However, if you have decided to adopt the NDRA of 65 then the guide from Acas ‘Age and the workplace – Putting the Employment Equality (Age) Regulations 2006 into practice’ (see the ‘useful links’ section) contains a full description of the process you will need to follow to comply with the ‘fair dismissal’ process requirements. It is particularly important to understand the timelines associated with it.

The Government has committed to review whether to maintain the NDRA in 2011. The current working assumption of many employer organisations is that it is likely to be scrapped at that stage.