Act on age

27 January, 2012

Employers can no longer ask older applicants about their age. Under the Equality Act 2010 it is unlawful for an employer to refuse to offer an applicant a job because of a "protected characteristic" namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

However, when the Act was first introduced, protection from discrimination on the grounds of age did not extend to those applicants who were:

l Older than the employer's normal retirement age (assuming this was 65 or greater);

l Six months away from the employer's normal retirement age;

l Aged 64½ and over, where the employer did not have a normal retirement age.

This was due to an exclusion under the default retirement age provisions and the statutory grounds, which allowed employers to lawfully reject someone on those grounds.

Now that the Default Retirement Age has been abolished, where does that leave employers in terms of recruitment procedures? Employers no longer have the right to reject anyone applying for a job because they are 64½ or over. They cannot even ask an applicant's age on the application form. Make sure you delete it if you have not already done so.

This means that all applicants must be treated fairly and on their merit. If you refuse somebody the job because they are 65 or over (or near that age), it will be regarded as direct discrimination on the grounds of age. There are a couple of theoretical exceptions to this although they have not been tested.

Employers may be able refuse a job on health and safety grounds but, in practice, this will be difficult for the majority of employers to substantiate. Alternatively, if the training costs required for the role are going to be "excessive", you may also have an argument for rejecting an application. These situations will work on a case-by-case basis and you should take legal advice if you are unsure.

There is, however, news relating to group risk insured benefits for example, sickness absence and accident assurance. As the cost of these rises with age, you can legitimately refuse to provide them to, or even withdraw them from, any employees who have reached 65 or the state pensionable age. In other words, in this area, you can lawfully discriminate against older employees and there is little, if anything, they can do about it.

l For a free sample 'application form', members can contact the NAMB on 01920 468061.





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