Friday 10 March 2006

Whats new in the final (Age Discrimination) regs?

Well, one person was brave enough to take me up on the challenge of summarising the changes between the original draft Regulations, and the final draft which came out this morning...

Louise Bland of Lupton Fawcett has produced this summary, which I reproduce below...

  • Regulation 3 – the controversial list of “examples” of proportionate means of achieving a legitimate aim has been removed (formerly Reg 3(2)).
  • Regulation 7(4) – the wording has been amended so that those who are older than the employer’s retirement age (or 65), or who would reach the employer’s retirement age (or 65) within 6 months of their application, are excluded from the protection for job applicants.
  • Regulation 11 (and Schedule 2) relating to pension schemes has been amended, particularly the definitions. I haven’t had time to read all of this in detail.
  • Regulation 14 – extension of protection to those seconded to the Serious Organised Crime Agency.
  • Regulation 30 – the point to note is that the exception relating to retirement at 65 has not been extended to partnerships.
  • The original regulations 30, 34, 35, and 36 have gone – these created exceptions for work-related invalidity benefit schemes, provision of benefits mirroring statutory benefits, provision of more generous benefits to replace statutory benefits, and provision of benefits before the statutory qualifying period.
  • Regulation 32, relating to benefits based on length of service, has been substantially reworded. All length of service benefits are excepted unless the disadvantaged employee has more than 5 years’ service, in which case the employer has to show that it “reasonably appears” to him that the criterion of length of service “fulfils a business need” such as encouraging the loyalty or motivation, or rewarding the experience, of some or all of his workers. A different slant on the original wording which possibly makes these benefits easier to justify.
  • Regulation 33 introduces a new exception relating to the provision of enhanced redundancy payments – this effectively replaces the old regulations 34 – 36 but in a more specific way.
  • Regulation 34 introduces a new exception for the provision of life assurance cover to retired workers who have retired early on the grounds of ill health.
  • There are several amendments to the Duty to Consider procedure in Schedule 6
o References are to the “operative date of termination” instead of to the date of “dismissal”.

o Paragraph 2 (2) makes it clear that employers cannot rely on a notification included in the contract of employment or a policy or procedure given to the employee – a specific notification must be sent in accordance with paragraph 2(1).

o Paragraph 5(2) now specifies exactly what the employee must request – either that his employment continues indefinitely, that it continues for a stated period, or that it continues until a stated date.

o The time periods have changed (paragraph 7) – the meeting must be held “within a reasonable period” after the employer has received the request and the decision must be given “as soon as is reasonably practicable” after the date of the meeting.

o The employer no longer has to consider the request “in good faith”.

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