· 2 min read · Features

The year ahead: Age discrimination looks set to be a hot topic in 2010

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Employment law is always changing, and this shows no sign of slowing down in 2010. In the first of a series of articles looking at the main changes expected in 2010, Lorraine Heard, a partner in the employment team at law firm Dickinson Dees, sets out why age discrimination will remain high on the agenda for HR professionals next year.

If the past year is any indication - a year when Strictly Come Dancing's Arlene Phillips was replaced by the younger Alesha Dixon and the BBC sought to recruit an older female newsreader - age discrimination will be a hot topic in 2010 for the public and HR professionals alike.

End of default retirement age?

We all watched as the High Court rejected the Heyday case, ending the challenge to the UK's default retirement age of 65. However, the Government has brought forward its review of this area to 2010, signalling the likely end of the default retirement age. If this happens, HR professionals should be ready to adapt their policies and procedures to ensure that they record a ‘normal retirement age' for the organisation, as this will then replace the default age.

Whether the retirement age is ‘default' or ‘normal', there will still be ways employers may be caught out by retirement-related issues. In one recent case a professional with 38 years' experience was denied a top position because she was three years from retirement, and the employer had to pay around £35,000 for injuries to feelings.

It is also possible that increased focus on eliminating age discrimination may result in the questioning of practices such as the scheme for calculating redundancy payments. 

The statutory scheme can result in a higher payment to an employee who is over the age of 41 but who has fewer years' service than an employee under the age of 41.  For example, 51 year-old with 10 years' service is entitled to 15 weeks' pay whereas 40 year-old with 14 years' service is only entitled to 14 weeks' pay. If the redundancy payment is enhanced, for example, by using twice the employee's normal salary as the figure for a week's pay instead of the capped statutory amount, the difference in the amount actually paid could be significant. 

An employer who seeks to reward loyalty by providing for an enhanced redundancy payment in respect of each year of service, regardless of the employee's age, would not have the ‘statutory scheme' protection and would have to justify its decision to avoid a finding of age discrimination.

End of ‘age bars'

Some organisations still set seemingly arbitrary age limits for jobs. At one end of the spectrum, an ‘age bar' that excluded anyone aged 36 or over from training as an air traffic controller was found to be unjustifiable. At the other end, with much talent available for hire, organisations must be careful not to ‘over-specify' roles, potentially leading graduates and new entrants to the market to feel discriminated against for a job they could do. Those responsible for recruitment need to ensure that candidates are recruited on merit, and job specification criteria are drafted in relation to skills.