Leader magazineASCL - Association of School and College Leaders

New age discrimination laws

The new age discrimination regulations which come into force on 1 October are set to have a major impact on employers.

A responsible estimate puts the potential cost of compensation claims on employers at 193 million in the first year. This is because it affects anyone who believes he or she can claim that some other age group is better treated - it applies to young, old and those in between.

While this makes it difficult to have a purely incremental pay scale that is longer than five years, it should not affect teachers because progress on to and up the upper pay spine is as a result of performance review. It would otherwise be likely to be unlawful.

It may also make redundancy schemes which are different from the statutory scheme and which take account of age in a different way harder to justify. It also imposes a default retirement age of 65 (though an employer may set an older or younger age if it is possible to justify it).

There is a set procedure for the employer to follow if dismissal is to be on the grounds of retirement. Failure to follow that process will render the dismissal automatically unfair.

Harassment on grounds of age will be illegal. It is not clear whether this will include sending an apprentice 'for a long weight/wait' but it will certainly include remarks that humiliate someone on grounds of age.

An employer also will be responsible if a third party provider, say, of insurance, discriminates on grounds of age.

It will be possible to justify both direct and indirect age discrimination but the justification must be objective. This means that the employer will have to show that the aim is legitimate and that the means will achieve the aim. The tribunal will balance the effect of discrimination against the needs of the employer. The DTI believes this will be difficult.

ACAS has issued an advice booklet. Members are advised to get a copy from www.acas.org.uk
and to ensure that staff are aware of the implications. See www.dti.gov.uk/employment/discrimination for more information.

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