Know the ropes of age discrimination regulations: Guest comment

From grads to retirees, age discrimination laws that come into play in October this year will have consequences for all. Paul Griffin, employment partner at law firm Norton Rose, raises and answers the questions the City - employee and employer alike - needs to know about.

Application forms: Is asking for candidates' birth dates unlawful?

It's not unlawful in itself but might be evidence of discrimination. Ask yourself why someone's age is relevant at the application stage. If it's not then asking for it and refusing a job may give rise to a claim alleging the decision was age-based. In reality other information on an application can give away age, for example "O" levels rather than "GCSEs".

Graduate recruitment: Are aspects of the milk round going to be unlawful?

Possibly, in that if certain universities are targeted exclusively and it can be shown that those universities have less mature students the recruitment process may be indirectly discriminatory on the basis of age. However, it may be possible to justify this if certain subjects are only taught at a particular university, for example.

Holiday entitlement: Will it be unlawful to increase holiday entitlement based on length of service?

An increase in holiday based on length of service up to five years will not be unlawful. An increase beyond five years will have to be shown to benefit the business by increasing loyalty or motivation or in some other way.

Working beyond retirement: Will an employee automatically stop working at 65 or do employers need to dismiss them?

Employees will have the right to keep working beyond 65, but employers will have the right to dismiss them at 65 on the basis of retirement as long as the statutory procedures are followed. In other words, employees can continue working beyond 65 with their employers' consent.

Share options: Do share incentives need to be amended?

Companies should be reviewing the leaver provisions in their share plans to ensure that the treatment of awards on retirement is not discriminatory. They should also ensure that their plan rules do not contain a blanket prohibition on the grant of awards to employees nearing retirement.

Pensions schemes: Do pension provisions need to be altered?

Age plays a fundamental role in pension schemes so the answer, in almost all cases, will be yes. However, pension schemes may be able to take advantage of exemptions in the regulations (aimed at recognising the inherent age-related nature of pension schemes) or objectively justify most of the age-related provisions. The DTI has published guidance although there are difficulties with it and, consequently, it has received a large number of comments. Until the difficulties are resolved and/or case law develops, much uncertainty will remain.

With help from Norton Rose's Matthew Findley on share options and Ed Hunnisett on pensions.

Comment or further question we can answer? Paul Griffin will answer directly.

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