Since 2006, the question of age and employment has changed so dramatically, that the position is now unrecognisable from what it was just five years ago. It is therefore hardly surprising that many employees (and their employers) are unaware of their employment rights, or are mistaken as to the true legal position.
2006 saw the implementation of the first piece of legislation outlawing age discrimination; The Employment Equality (Age) Regulations 2006. This made it illegal to discriminate in the employment field on the grounds of age (or perceived age). It also brought in the first rules on how an employer should proceed to force an employee to retire, introducing the default retirement age and the retirement procedure.
The main issues for older people in employment have always been the ability of their employer to force them to retire, whether at 65 or some other age and a perception that age and experience are less valued by employers than youth and perceived vigour.
The implementation of the Equality Act 2010 removed the default retirement age completely, requiring employers who wish to implement their own retirement age to satisfy the Employment Tribunal that their retirement age is a ‘proportionate means of achieving a legitimate aim’. There is very little case law to date on which employers can base their decision. As a result there is now no immediately obvious reason that an employer can rely on to objectively justify retirement at any age.
It is still possible to dismiss someone lawfully for capability if the correct capability procedure has been followed, but if ‘capability’ is a cloak for age, then that dismissal will be unfair and discriminatory.
Older employees also report getting a raw deal insofar as the allocation of benefits is concerned. Often, older employees are denied benefits such as healthcare and permanent heath insurance because their employers feel that the cost is prohibitive.
It is also true to say that older employees are more likely to have to deal with issues around termination payments, bonuses, share options and other benefits. In family businesses, succession will also be a challenge to be managed.
Senior executives often enter into complex executive termination agreements at the end of their working life.
We would advise employees to obtain specialist legal advice in all of the above circumstances. We can help with all these issues with a view to providing a stress-free solution.
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