On 1 September 2016, the Discrimination (Age) (Jersey) Regulations 201- (the “Regulations”) will take effect, adding ‘age’ as a protected characteristic of the Discrimination (Jersey) Law 2013 (the “Discrimination Law”).
The Regulation will also amend the Employment (Jersey) Law 2003 (the “Employment Law”).
In what ways will age be a protected characteristic?
In the same manner in which ‘Race’ and ‘Sex and other characteristics’ are currently protected, from 1 September 2016 it will be unlawful to directly or indirectly discriminate against a person on the grounds of age unless it can be shown that the discrimination was a proportionate means of achieving a legitimate aim.
It is advisable for businesses to consider their policies in order to ensure compliance with the new regulations. Instances in which a business may be deemed to directly discriminate on the grounds of age could include restrictions on the provision of services, such as setting a limit on age for the provision of hire cars.
Businesses also ought to be aware that certain restrictions may also indirectly discriminate against individuals from a particular age group, such as restrictions preventing individuals out of employment from paying for goods in instalments, which would disproportionately disadvantage retired individuals.
In which instances will age-related discrimination be lawful?
The Regulations provide for certain distinct exceptions in which age-related discrimination is to be lawful. Such exceptions include but are not limited to:
· any act pursuant to States policy or a Ministerial decision in order to promote employment or other opportunities, or to provide access to facilities and services;
· providing concessions in relation to the provision of services, admission or membership on the basis of the individual’s age group or membership duration;
· restricting access to a sport or competition on the grounds of age in order to promote fairness, comply with national or international rules, or in order to increase participation; and
· age-related insurance or financial arrangements, provided that it is reasonable in the circumstances and takes consideration of any data which may be sensibly relied upon.
How will employment relations be affected?
The Regulations will be notably relevant to employment and both employers and employees ought to familiarise themselves with the Regulations.
Initially, the impact of the Regulations will be somewhat mitigated as, until 1 September 2018, certain employer policies and procedures will not be deemed unlawful.
Indeed, until 1 September 2018, employers may take into consideration that a person is nearing retirement age when deciding who to recruit, promote, move to another position or when deciding what training is to be provided. Where an employer has a policy which allows the dismissal of an employee once they have reached pensionable age or the employer’s established retirement age (if it is higher), employers may dismiss employees in accordance with their policy provided that the date of termination is effective before 1 September 2018.
Certain exemptions will survive 1 September 2018. Under the Discrimination Law it will not be unlawful to provide benefits or redundancy payments based on length of service, or to provide insurance (or a related financial service) only to employees under the legal pensionable age. It will also not be unlawful for an employer to provide or facilitate the care of any employees’ children of a particular age. Notably, the Regulations will also not affect the qualifying features for minimum wage, meaning that there remains no requirement to pay individuals under the age of sixteen minimum wage.
How should my business prepare?
Businesses ought to review their internal policies and procedures in light of the Regulations. In particular, employers should consider whether they currently vary the salaries of employees purely on the grounds of age and whether the workplace culture could be offensive to individuals on the grounds of age. Indeed, there may be a need to further cultivate a non-discriminatory work environment and to update employee salaries so that they reflect the role being performed rather than the age of the employee.
Businesses also ought to ensure that the services or goods which they provide do not discriminate against individuals on the grounds of age, save for where there is a prescribed exception under the Discrimination Law. Where a business deems an act of discrimination to be justified, it is recommended that a note is made as to why such act was both proportionate and justified, potentially detailing why less severe measures were not appropriate in this instance.
What might the future hold?
The full impact of the Regulations will not take effect until 1 September 2018, after which there remains a degree of uncertainty as to the implications of the Regulations. Such issues include how to treat individuals who do not wish to retire but are no longer best suited to perform their duties. This could involve offering an alternative role, or dismissing the individual on the grounds of performance. Furthermore, it is yet to be seen what the cost implication will be for businesses whose employees are over pensionable age, particularly with regard to insurance.