3. Current position
Equal Treatment Directive 2000/78
Employment Equality (Age) Regulations 2006 SI
2006/1031 (“the Regulations”)
Now the Equality Act 2010
4. Phasing out DRA from April 2011
Consultation now closed, awaiting response
Retirements that have been notified before 6 April
2011 to take effect before 1 October 2011 are valid
If notified before 6 April 2011 to take effect after 1
October 2011 will not be valid
5. DRA will cease on 1 October 2011
No new notices of intended retirement may be issued
after 6 April 2011
Statutory retirement procedures will be abolished
6. New position?
No DRA means:
– no longer ‘fair’ dismissal under ERA
– Employers can still have contractual retirement ages
– Contractual retirement ages will need to be objectively
justified
“Proportionate means of achieving a legitimate
aim”
7. Insured benefits
Life assurance
Medical cover
Income protection schemes
Critical illness cover
Permanent health insurance
Employee Share Schemes – good and bad leavers
8. Seldon v Clarkson Wright and Jakes and anor
EWCA 2010
Partners in law firm to retire at 65
Justification:
– Giving senior solicitors opportunity for partnership
– Facilitating partnership and work force planning
– Limiting need to expel Partners by way of performance
management thus maintaining a congenial culture
CA held: Objectively justified
9. Hampton v Lord Chancellor and anor 2008
Judicial office of Recorder
Retirement at 65
Justification:
– Reasonable flow of new appointments and candidates
for full time judiciary posts
– Presence of Recorders aged 65- 70 prevents
recruitment of younger Recorders
– Presence of Recorder aged over 65 meant less
challenging cases for those in pool for appointment
Held: not objectively justified
10. Rosenbladt, ECJ 2010
Employment terminated when the employee could
claim a statutory pension, age 65
ECJ held that the contractual retirement age of 65
was justified
German Government had legitimate aims of:
– sharing employment between generations
– avoiding capability dismissals
Proportionate because:
– required employee to have a replacement income
– agreed with employee or Union
11. Wolf v Stadt Frankfurt am Main, ECJ 2010
German law had maximum recruitment age 30 for
Frankfurt Fire Service
Could be ‘genuine occupational requirement’ to
possess high physical capabilities
Substantial scientific data provided
12. Petersen, ECJ 2010
Age limit of 68 for dentists in German national health
service
Justification:
– to protect patients against declining performance of
older practitioners
ECJ rejected this justification
14. Disadvantages
Fewer opportunities for career development for
new/younger employees
Reduced capability
Ongoing funding of pensions
Performance diminishing with age
Difficulties in succession planning
Less natural wastage
Increased sickness absence
15. Government assurance
Most agree to requests to work beyond retirement
age
Most employees only choose to work one or two
years past the age of 65
Work performance in most jobs is not affected up to
the age of 70
17. The Equality Act 2010
Purpose
– to harmonise anti discrimination law
– to strengthen the law to support progress on equality
When
– received Royal Assent 8 April 2010
– core provisions from 1 October 2010
Equality and Human Rights Commission – guidance
(statutory and non statutory)
18. The Equality Act 2010
Protected Characteristics
– age
– disability
– gender reassignment
– marriage and civil partnership
– pregnancy and maternity
– race
– religion or belief
– sex
– sexual orientation
19. The Equality Act 2010
Direct Discrimination
– A discriminates against B if, because of a protected
characteristic, A treats B less favourably than A treats
or would treat others.
– discrimination by association/perception
– (dual discrimination)
20. The Equality Act 2010
Indirect Discrimination
– A applies a provision criteria or practice (PCP) to B
– A applies or would apply the PCP to persons with
whom B does not share the relevant protected
characteristic
– the PCP puts or would put persons with whom B shares
the characteristic at a particular disadvantage when
compared with persons with whom B does not share
the characteristic
– the PCP puts or would put B at that disadvantage and
– the PCP is not a proportionate means of achieving a
legitimate aim
– Extended to disability and gender reassignment
21. The Equality Act 2010
Harassment
– A harasses B if A engages in unwanted conduct
relating to a relevant protected characteristic which has
the purpose or effect of violating B’s dignity or creating
an intimidating, hostile, degrading, humiliating or
offensive environment for B
– by third parties
– no need to possess protected characteristics
(associative and perceptive)
22. The Equality Act 2010
Victimisation
– removes need for absolute comparator
– A victimises B if A subjects B to a detriment because
B does a protected act or
A believes that B has done or may do a protected
act
Instructing or Causing Discrimination
– unlawful to instruct/induce discrimination, harassment
or victimisation or to attempt to do so
– extends protection to all protected characteristics
23. The Equality Act 2010
Disability Discrimination
– normal day to day activities
8 functions removed
– associated/perceived discrimination
– indirect discrimination
– discrimination arising from disability
A discriminates against a disabled person, B, if A
treats B unfavourably because of something arising
in consequence of B’s disability and A cannot
objectively justify the treatment
24. The Equality Act 2010
– duty to make reasonable adjustments
PCP or physical feature
provision of auxiliary aid
– pre employment medical questionnaires
comply with requirement to undergo assessment
reasonable adjustments
intrinsic to role
to monitor diversity
to take positive action
genuine occupational requirement
25. The Equality Act 2010
Equal Pay
– (publication of pay differences)
– pay secrecy clauses
potentially unenforceable
victimisation
26. The Equality Act 2010
Practical steps
– Equal Opportunities Policy
– Harassment Policy
– Training for Staff and Managers
– Review procedures (recruitment)
