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Towards age equality The European Directive on age equality Dr David McConnell, Policy Officer with Age Concern Northern Ireland, looks at the rationale for and implications of new legislation outlawing age discrimination in employment and education, a development which has been described as the biggest change since fair employment.
From October 2006, discrimination on grounds of age in employment and vocational training is illegal. The origins of this legislation are four-fold:
Direct discrimination on grounds of age will not, however, be unlawful in certain narrowly defined circumstances. If, for example, an employer can ‘objectively justify’ direct discrimination this will not contravene the Directive. Some people have given as an example setting a retirement age below the new ‘default retirement age’ of 65. Such a policy must itself contribute to a legitimate aim (eg retiring someone such as an airline pilot on grounds of public safety), the discrimination involved must be outweighed by the benefits and there must be no reasonable alternative. Continuing the example of airline pilots, if it is possible to individually assess their competence, it may be difficult to apply a blanket age for retirement The legislation also allows direct discrimination if there are ‘Genuine Occupational Requirements’ (GOR). The example often given here relates to acting, with the need for roles to be played by people of a certain age. Employers need to be careful, however that they do not use proxies for age, such as physical capacity, health or immaturity, based on negative stereotypes which will not constitute a genuine substitute for a GOR. There are also exemptions in the area of wages and conditions of employment. The differential minimum wage based on age will remain legal, as will salary scales and rewarding such things as loyalty within a five year period. As indicated above, a new ‘default retirement age’ is being introduced. This will mean it will be illegal to forcibly retire an employee below the age of 65 in the absence of objective justification and in future employers will have to adhere to a timetable notifying people of their impending retirement and of their right to request to stay on (although employers must seriously consider this, they do not have to agree to the request). The upper age limits on redundancy payments and unfair dismissal are being removed but the basis of the calculation on the level of redundancy payments based on age will remain. The point needs to be made, however, that while the government has exempted certain practices this is not necessarily the end of the story. These provisions can, and are already being, challenged through domestic and European Courts. This legislation has been described as the biggest change since fair employment. Conferences and seminars have already taken place to inform and advise employers. There will be an awareness raising campaign by the Equality Commission and a further series of advisory sessions for employers. Despite this, it is likely that only when a high profile case of age discrimination makes headlines will minds be truly focused on the responsibilities and protection the regulations afford. © Law Centre (NI) 2006
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