Management Information Sheet
Age Discrimination in the Workplace
Statutory Policy/Procedures - Age Discrimination in the Workplace
As you may be aware Age Discrimination Legislation comes into force from 1 October 2006, and we are in the process of reviewing the legislation with a view to providing more comprehensive guidance in the Autumn term 2006. The following Human Resources Policies/Procedure will need to be reviewed as a priority in the light of this new legislation:General and specific issues
Age Discrimination Legislation
The purpose of the change in a wide sense is to bring 'age' into line with other anti-discrimination legislation and to cope with a situation of demographics whereby the number of young people entering the jobs market by 2020 will be about 2m less. At the same time the number of over 50's will greatly increase. For this main reason the Government is encouraging Schools and employees to consider working for longer periods/flexible working and if possible after the normal retirement age (NRA) of the County Council (which is 65).
In addition there is a cultural change needed in some organisations with regard to the employment of older and younger staff; it can also cover ranges of age.
Retirement
Although staff can currently elect to retire at age 60 the Normal Retirement Age (NRA) for County Council employees is 65 for both teachers and support staff. Where the County Council/School is not the employer (e.g. foundation/VA), the situation is almost certainly the same because all school teachers have the provisions of the "Conditions of Service" for school teachers in England and Wales (Burgundy Book) incorporated in their contents of employment. The Burgundy Book allows for teachers to retire at the end of the term in which they attain the age 65.
In practice many teachers and support staff elect to retire at the age of 60 with the pension benefits they have accrued, without being affected by the Age Discrimination legislation. However, there may be changes to this practice due to the current review at national level of both the Teachers Pension Scheme and Local Government Pension Scheme.
The regulations introduce a new requirement on Schools to specifically notify Schools staff of their approaching contractual retirement date between 6 and 12 months in advance of their 65th birthday, and to offer employees the opportunity to request not to be retired. In effect the school, has a duty to consider such a request and follow a procedure called "the duty to consider". Schools may wish to know of retirements 12 months in advance in order to forward plan their staffing in the academic cycle. Schools may seek support from the Employee Service Centre who will be establishing information data to be used.
This procedure will form part of our more comprehensive guidance to be issued in the Autumn Term.
Transitional Arrangements on Retirement
The school should write to any teacher or support staff member who will attain the age of 65 between 1 October 2006 and 31 March 2007 at least 12 weeks before their 65th birthday. In practice this requirement cannot be easily met for retirements between 1 October and 31 March December but the school should give the period notice required under the contract or 4 weeks notice whichever is the less. Where there is insufficient time to give adequate notice it would be prudent to extend the employment for a short time in order to avoid any breach of contract claim. This date is the intended date of retirement and a model letter for this purpose is attached at Appendix A.
The intended date of retirement cannot be before the employee's 65th birthday. However, nothing in this procedure precludes an employee from choosing to resign earlier than their 65th birthday.
Employee Rights
The employee is entitled to request not to be retired on or after the intended date of retirement. Within the transitional period (1 October 2006 to 31 March 2007), the employee must make such a request in writing no later than 4 weeks before their due retirement date as notified by the school.
Duty to Consider
Within a reasonable period of receiving such a request, the school must hold a meeting with the employee (and their representative if they so wish) to consider the request not to be retired. However, nothing prevents the school and the employee from agreeing to a later retirement date before this meeting. In this case no meeting needs to be held. In either case, the school must write to the employee with the decision and, where the decision is not to alter the retirement date, offering the right of appeal. A further letter must be sent following any appeal. It is recommended that the first meeting is conducted by the Headteacher and that any appeals are heard by the Governing Body Dismissal Committee usually a panel of 3 Governors chosen from the school personnel or staff committee; model letters are at Appendix B for these purposes.
Agreeing to a request not to be retired
The school must state whether the request is granted for a specific period, until a given date or indefinitely. If the request is granted for a specific period or until a given date, the above procedure must be repeated for the new retirement date (bearing in mind the standard timescales will apply once the Regulations are in and therefore the School's notification must be at least 6 months before the new due retirement date*). If the request is granted for an indefinite period the employee will not be able to retire the employee and could only dismiss them for one of the other fair reasons in the same way as other employees.
*It will often be the case that both the School and the employee will wish to agree to a retirement date at the end of the term in which the employee reaches age 65. Where the agreed new retirement date is within 6 months of the intended date of retirement (age 65) there is no need to repeat this procedure.
Refusing a request not to be retired
The School is not obliged to give reasons for refusing a request not to be retired, although in practice Schools may wish to offer an explanation. Schools should seek advice on this from their Human Resources Consultant and it is important to ensure that the reason itself is not discriminatory.
Failure to follow correct procedures
Failure to follow the above procedures will render any dismissal automatically unfair. Failure to meet relevant timescales could result in financial penalties for the school and/or Norfolk County Council and the employee will have a right to remain in employment until the relevant timescales have been met.
Recruitment Issues
This will be dealt with in the more comprehensive guidance to be issued in the Autumn. Schools should be aware that recruitment advertisements need to avoid anything in the job description, person specification and selection criteria that directly or indirectly discriminates on the grounds of Age. Schools should seek advice from their Human Resources Consultant or the Recruitment Team who handle advertisements.
Selection Issues
Similar principles apply to the selection criteria used in short-listing and selection interviews. (The selection criteria should be objective and related to the needs of the school and its curriculum/ organisation and the job description/person specification). Use of relevant competencies as selection criteria is to be recommended.
Harassment/Victimisation due to age
It is unlawful to discriminate on the grounds of equal opportunities law including sex, race and disability. This is extended to age though there are some other legal considerations that will be set out in the more comprehensive guidance to be issued in the Autumn Term. Stereotypical phrases such as "he/she is over the hill" or "younger employees are not as reliable" should not be used.
Dismissal on grounds of retirement
It is fair to dismiss staff for the reason of retirement but the dismissal may be unfair unless the "Duty to Consider" procedures have been properly followed. In addition legal advice warns against dismissing on grounds of retirement when in fact it is on the basis of performance or attendance. Equally, if the employee can show it was not a 'retirement' then it could be challenged on age discrimination i.e. a young worker would be dealt with under capability, with a clear action plan whereas the older worker may simply retired as an 'easy' option.
Redundancy in reorganisations and other situations
The selection criteria used in reorganisations and other staff adjustment situations do need to be reviewed and we will be consulting Governors, Heads and the Teaching/Non Teaching Unions about this. For example "last in first out" will no longer be able to be used as redundancy selection criteria.
Comprehensive Guidance
Many other issues are also affected by the Age Discrimination laws which commence on 1 October 2006 (as stated above there are transitional arrangements for retirement procedures for these retirements between 1 October 2006 and 31 March 2007).
It is intended to consult Governors, Heads and Unions on the more comprehensive guidance to be issued in the Autumn Term 2006. In addition new policy/procedural guidance will be included in the Personnel Handbook for schools which is anyway, being reviewed in detail in the Autumn Term. The main areas affected by the legislation not already mentioned above are:
Action by Schools
- Obtain the age 65 retirements dates in the next 12 months - 1 October 2006 to 30 September 2007 and thereafter maintain a rolling list month by month. Schools should contact their Employee Support Officer in the Employee Service Centre if there are problems in obtaining the information using your normal means.
- Activate the transitional retirement provisions as from 1 October 2006 to 31 March 2007. The full retirement provisions apply to retirements from 1 April 2007 and these need to be activated now as well.
- Think about what further guidance is needed and feed-back to us any needs such as briefing sessions.
- Receive the more comprehensive guidance from Children's Services Human Resources in the Autumn Term. In the meantime those interested in further guidance now (not school specific) can access a useful booklet on the ACAS website for a guide entitled "Age and the Workforce - putting the Employment Equality Age regulations 2006 into practice".
- Contact their Human Resources Consultant or Employee Support Officer in the Employee Service Centre or the Recruitment Team for further guidance on the relevant topic. Alternatively, you may contact me as detailed below on general policy/procedure issues.
Appendix A Letter
Appendix B Letter