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Last Updated: Friday, 29 September 2006, 06:53 GMT 07:53 UK
Age work law could 'fail' over 65s
VIEWPOINT
By Gillian Dowling
Employment lawyer with Croner

Gillian Dowling
Employment expert Gillian Dowling
Many people think that the introduction of new age discrimination legislation this October will open up employment opportunities for those who need to work past the age of 65.

But the opposite may be true.

While the new Employment Equality (Age) Regulations 2006 may benefit some age groups, they will actually help employers retire their older employees and legally allow them to refuse job applicants who are over the age of 65.

Older people are increasingly feeling the need to stay in employment because of financial considerations such as pension issues, supporting their children through university and helping their offspring get a foot on the property ladder.

On the surface the new regulations appear to create opportunities for those who wish to continue working beyond retirement.

An employer does not even have to give written reasons for refusing an employee's request to continue working beyond 65

Employers will not be able to enforce a retirement age lower than 65, unless it can be objectively justified.

Those approaching retirement age are also granted the right to request to continue working for their employer beyond retirement.

But there is nothing in the legislation to encourage employers to take on or retain people of 65 or over.

In fact, part of the regulations specifically enables employers to refuse job applicants if they are over the retirement age - or even if they are within six months of the retirement age.

No obligation

Whilst every employer has a duty to consider an employee request to continue working beyond retirement, there is no obligation on an employer to grant it.

An employer does not even have to give written reasons for refusing an employee's request to continue working beyond 65.

Furthermore, the new law actually appears to incentivise employers not to employ staff beyond 65 by making it potentially costly to do so.

Age discrimination legislation will introduce new rights so that older employees who are kept on past 65 will enjoy the same benefits as the rest of the workforce.

This includes statutory redundancy pay and statutory sick pay.

Rare circumstances

Other benefits given to younger staff will also have to be extended to older employees, such as life insurance and private medical insurance.

Only in certain rare circumstances will it be possible to justify not providing them.

A new right for employees over 65 to claim unfair dismissal will make it more difficult and potentially more costly for employers to dismiss staff.

As such, an employer could see employing this age group as an expensive risk they are not willing to take.

Although age discrimination legislation will have benefits for all age groups, technically it provides employers with a get-out clause when it comes to the employment of older employees

If the over 65s will not benefit from the new regulations, is there any age group who will benefit?

Significant benefits

A significant age group to experience benefits are those in their 40s and 50s.

Frequently discriminated against because of age, employees in this age group are often overlooked for training and promotion and may be first in line in the event of redundancies.

Once unemployed it may also be difficult for them to find new employment when competing with 'fresh young graduates'.

But after October it will be unlawful to use age as a factor in any employment decision, such as promotion, training, pay and redundancy.

For example, employers won't be able to offer training only to younger employees because you "can't teach old dogs new tricks", or dismiss an employee for being "too old for the job".

This may mean a demographic shift in some sectors more than others, for example the traditionally youthful professions of advertising and marketing.

Age-neutral language

Whilst it is currently legal to advertise for "young", "energetic" and "enthusiastic" recruits, the new legislation will enforce age-neutral language in job advertisements.

It will also no longer be lawful to consider a person's age during recruitment, other than for monitoring purposes.

It is crucial for employers to be aware that, even though they will not be forced to keep on employees over the age of 65, they will need to make changes to combat discrimination against all ages.

This will involve a comprehensive assessment of employment policies such as those concerning recruitment and equal opportunities, and providing employees with adequate training to implement them.

Although age discrimination legislation will have benefits for all age groups, technically it provides employers with a get-out clause when it comes to the employment of older employees, failing those who, many would argue, need the most protection.

The views expressed are solely those of the author and not the BBC. Any guidance is for general information only and does not constitute financial or legal advice.


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