New age discrimination regulations are only a month old, but already they are being challenged, says Simon Rice-Birchall. The Employment Equality (Age) Regulations came into force on 1 October 2006. However, Age Concern has argued that the UK Government has failed to properly implement the requirements of the framework directive relating to age, and this could have consequences for public sector employers, since such employers cannot rely on an 'incorrect' part of the regulations. Two aspects of the regulations are open to challenge. The first is the default retirement age (which is 65), at which point, under the regulations, any employer can usually require employees to retire. Age Concern has argued that this is not allowed by the framework directive. The case is due to be heard in the High Court on 6 December, and if it is permitted to proceed, it is likely that the case will be referred to the European Court of Justice. The UK Government has argued that fixing a default retirement age was justified for two reasons. The first relates to workforce planning: it is useful to have a target age for retirement against which employers and employees can plan - employers can manage against a known attrition profile and can reduce the risk of blocking promotion for younger workers, while employees are encouraged to make provision for retirement because they cannot be sure of working beyond 65. The second relates to cost: a default retirement age is justified because it reduces the risk that the cost of providing pensions and insurance benefits for older employees would lead to employers withdrawing such benefits for all employees. The second aspect of the regulations that is open to challenge is the UK's approach to direct age discrimination. Under the new regulations, direct age discrimination (save in cases of harassment) is permitted if it is 'a proportionate means of achieving a legitimate aim'. Age Concern says that the framework directive gives a list of specific examples of what might be justifiable direct discrimination and goes on to argue that the directive requires each EU member state to come up with a specific list of particular reasons for imposing a minimum or maximum age for health and safety reasons. If the European Court agrees with Age Concern's challenge, the UK Government will probably have to amend the legislation. The problem for public sector employers is that they are also bound directly by the framework directive, regardless of how the regulations have implemented that directive in the UK. The only risk-free course of action for public sector employers is to not require any employees to retire unless they want to and to eliminate any direct age rules unless they are specially covered by the regulations (for example, in relation to redundancy payments). Since this is unrealistic in practice, public sector employers may comply with the regulations and still find themselves saddled with expensive age discrimination liabilities. It is likely to be at least the middle of next year before the law becomes more certain in this area. Simon Rice-Birchall is a partner in the HR group of Eversheds who specialises in local government.
