The Employment Equality (Age) Regulations 2006

Statutory Instruments

2006 No. 1031

EMPLOYMENT AND TRAINING

AGE DISCRIMINATION

The Employment Equality (Age) Regulations 2006

Made

3rd April 2006

Coming into force

1st October 2006

A draft of these Regulations was laid before Parliament in accordance with paragraph 2 of Schedule 2 to the European Communities Act 1972 M1 , and was approved by resolution of each House of Parliament;

The Secretary of State, who is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to discrimination M2 , makes the following Regulations in exercise of the powers conferred by section 2(2):—

Marginal Citations

M1 1972 c. 68.

M2 See the European Communities (Designation) (No. 3) Order 2002 (S.I. 2002/1819).

F1 PART 1 E+W+S GENERAL

Textual Amendments

F1 Regulations revoked (except Schs. 6, 8) (1.10.2010) by Equality Act 2010 (c. 15), s. 216(3), Sch. 27 Pt. 2 (with ss. 6(4), 205); S.I. 2010/2317, art. 2(15)(f) (with arts. 11(1), 15, 16, 20, Sch. 3)

Citation, commencement and extent E+W+S

F1 1.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation E+W+S

F1 2.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discrimination on grounds of age E+W+S

F1 3.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Discrimination by way of victimisation E+W+S

F1 4.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Instructions to discriminate E+W+S

F1 5.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Harassment on grounds of age E+W+S

F1 6.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 PART 2 E+W+S DISCRIMINATION IN EMPLOYMENT AND VOCATIONAL TRAINING

Applicants and employees E+W+S

F1 7.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for genuine occupational requirement etc E+W+S

F1 8.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contract workers E+W+S

F1 9.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meaning of employment and contract work at establishment in Great Britain E+W+S

F1 10.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Pension schemes E+W+S

F1 11.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Office-holders etc E+W+S

F1 12.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Police E+W+S

F1 13.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Serious Organised Crime Agency E+W+S

F1 14.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Barristers E+W+S

F1 15.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advocates E+W+S

F1 16.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Partnerships E+W+S

F1 17.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Trade organisations E+W+S

F1 18.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Qualifications bodies E+W+S

F1 19.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The provision of vocational training E+W+S

F1 20.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employment agencies, careers guidance etc E+W+S

F1 21.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assisting persons to obtain employment etc E+W+S

F1 22.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Institutions of further and higher education E+W+S

F1 23.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Relationships which have come to an end E+W+S

F1 24.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 PART 3 E+W+S OTHER UNLAWFUL ACTS

Liability of employers and principals E+W+S

F1 25.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Aiding unlawful acts E+W+S

F1 26.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 PART 4 E+W+S GENERAL EXCEPTIONS FROM PARTS 2 AND 3

Exception for statutory authority E+W+S

F1 27.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for national security E+W+S

F1 28.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exceptions for positive action E+W+S

F1 29.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for retirement E+W+S

F1 30.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for the national minimum wage E+W+S

F1 31.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for provision of certain benefits based on length of service E+W+S

F1 32.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for provision of enhanced redundancy payments to employees E+W+S

F1 33.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exception for provision of life assurance cover to retired workers E+W+S

F1 34.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 PART 5 E+W+S ENFORCEMENT

Restriction of proceedings for breach of Regulations E+W+S

F1 35.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Jurisdiction of employment tribunals E+W+S

F1 36.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Burden of proof: employment tribunals E+W+S

F1 37.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Remedies on complaints in employment tribunals E+W+S

F1 38.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Jurisdiction of county and sheriff courts E+W+S

F1 39.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Burden of proof: county and sheriff courts E+W+S

F1 40.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Help for persons in obtaining information etc E+W+S

F1 41.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Period within which proceedings to be brought E+W+S

F1 42.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 PART 6 E+W+S SUPPLEMENTAL

Validity of contracts, collective agreements and rules of undertakings E+W+S

F1 43.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to the Crown etc E+W+S

F1 44.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to House of Commons staff E+W+S

F1 45.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application to House of Lords staff E+W+S

F1 46.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty to consider working beyond retirement E+W+S

F1 47.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty to consider working beyond retirement - transitional provisions E+W+S

F1 48.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendments, transitionals, repeals and revocations E+W+S

F1 49.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Gerry Sutcliffe

Parliamentary Under-Secretary of State for Employment Relations and Consumer Affairs

Department of Trade and Industry

Regulation 10(4)

F1 SCHEDULE 1 E+W+S Norwegian part of the Frigg Gas Field

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 11(3)

F1 SCHEDULE 2 E+W+S Pension schemes

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 41(1)

F1 SCHEDULE 3 E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 41(1)

F1 SCHEDULE 4 E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 43

F1 SCHEDULE 5 E+W+S Validity of contracts, collective agreements and rules of undertakings

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 47

SCHEDULE 6 E+W+S Duty to consider working beyond retirement

Interpretation E+W+S

1.—(1) In this Schedule—

“dismissal” means a dismissal within the meaning of section 95 of the 1996 Act M3 ;

“employee” means [F2 a person who is a relevant worker for the purposes of paragraph 8 of Schedule 9 to the Equality Act 2010 (exceptions relating to retirement)] and references to “employer” shall be construed accordingly;

“intended date of retirement” has the meaning given by sub-paragraph (2);

“operative date of termination” means (subject to paragraph 10(3))—

(a)

where the employer terminates the employee's contract of employment by notice, the date on which the notice expires, or

(b)

where the employer terminates the contract of employment without notice, the date on which the termination takes effect;

“request” means a request made under paragraph 5; and

“worker” has the same meaning as in section 230(3) of the 1996 Act.

(2) In this Schedule “intended date of retirement” means—

(a) where the employer notifies a date in accordance with paragraph 2, that date;

(b) where the employer notifies a date in accordance with paragraph 4 and either no request is made or a request is made after the notification, that date;

(c) where,

(i) the employer has not notified a date in accordance with paragraph 2,

(ii) a request is made before the employer has notified a date in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given),

(iii) the request is made by an employee who has reasonable grounds for believing that the employer intends to retire him on a certain date, and,

(iv) the request identifies that date,

the date so identified;

(d) in a case to which paragraph 3 has applied, any earlier or later date that has superseded the date mentioned in paragraph (a), (b) or (c) as the intended date of retirement by virtue of paragraph 3(3);

(e) in a case to which paragraph 10 has applied, the later date that has superseded the date mentioned in paragraph (a), (b) or (c) as the intended date of retirement by virtue of paragraph 10(3)(b).

Textual Amendments

F2 Words in Sch. 6 para. 1(1) substituted (1.10.2010 immediately after the commencement of S.I. 2010/2779) by The Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 (S.I. 2010/2317), art. 1(2), Sch. 8 para. 7

Marginal Citations

M3 Employment Rights Act 1996 (c. 18); section 95 has been amended by section 57 of, and by Schedule 1, paragraph 29, and Schedule 2 to, the Employment Relations Act 2004 (c. 24), and by regulation 11 of, and paragraph 3(1) and (7) of Part 1 of Schedule 2 to, S.I. 2002/2034.

Duty of employer to inform employee E+W+S

2.—(1) An employer who intends to retire an employee has a duty to notify the employee in writing of—

(a) the employee's right to make a request; and

(b) the date on which he intends the employee to retire,

not more than one year and not less than six months before that date.

(2) The duty to notify applies regardless of—

(a) whether there is any term in the employee's contract of employment indicating when his retirement is expected to take place,

(b) any other notification of, or information about, the employee's date of retirement given to him by the employer at any time, and

(c) any other information about the employee's right to make a request given to him by the employer at any time.

3.—(1) This paragraph applies if the employer has notified the employee in accordance with paragraph 2 or 4 or the employee has made a request before being notified in accordance with paragraph 4 (including where no notification in accordance with that paragraph is given), and— E+W+S

(a) the employer and employee agree, in accordance with paragraph 7(3)(b) or 8(5)(b), that the dismissal is to take effect on a date later than the relevant date;

(b) the employer gives notice to the employee, in accordance with paragraph 7(7)(a)(ii) or, where the employee appeals, paragraph 8(9)(a)(ii), that the dismissal is to take effect on a date later than the relevant date; or

(c) the employer and employee agree that the dismissal is to take effect on a date earlier than the relevant date.

(2) This Schedule does not require the employer to give the employee a further notification in respect of dismissal taking effect on a date—

(a) agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) that is later than the relevant date and falls six months or less after the relevant date; or

(b) agreed as mentioned in sub-paragraph (1)(c) that is earlier than the relevant date.

(3) If—

(a) a date later than the relevant date is agreed as mentioned in sub-paragraph (1)(a) or notified as mentioned in sub-paragraph (1)(b) and falls six months or less after the relevant date, or

(b) a date earlier than the relevant date is agreed as mentioned in sub-paragraph (1)(c),

the earlier or later date shall supersede the relevant date as the intended date of retirement.

(4) In this paragraph, “the relevant date” means the date that is defined as the intended date of retirement in paragraph (a), (b) or (c) of paragraph 1(2).

Continuing duty to inform employee E+W+S

4.  Where the employer has failed to comply with paragraph 2, he has a continuing duty to notify the employee in writing as described in paragraph 2(1) until the fourteenth day before the operative date of termination.

Statutory right to request not to retire E+W+S

5.—(1) An employee may make a request to his employer not to retire on the intended date of retirement.

(2) In his request the employee must propose that his employment should continue, following the intended date of retirement—

(a) indefinitely,

(b) for a stated period, or

(c) until a stated date;

and, if the request is made at a time when it is no longer possible for the employer to notify in accordance with paragraph 2 and the employer has not yet notified in accordance with paragraph 4, must identify the date on which he believes that the employer intends to retire him.

(3) A request must be in writing and state that it is made under this paragraph.

(4) An employee may only make one request under this paragraph in relation to any one intended date of retirement and may not make a request in relation to a date that supersedes a different date as the intended date of retirement by virtue of paragraph 3(3) or 10(3)(b).

(5) A request is only a request made under this paragraph if it is made—

(a) in a case where the employer has complied with paragraph 2, more than three months but not more than six months before the intended date of retirement, or

(b) in a case where the employer has not complied with paragraph 2, before, but not more than six months before, the intended date of retirement.

An employer's duty to consider a request E+W+S

6.  An employer to whom a request is made is under a duty to consider the request in accordance with paragraphs 7 to 9.

Meeting to consider request E+W+S

7.—(1) An employer having a duty under paragraph 6 to consider a request shall hold a meeting to discuss the request with the employee within a reasonable period after receiving it.

(2) The employer and employee must take all reasonable steps to attend the meeting.

(3) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a) the employer and employee agree that the employee's employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b) the employer and employee agree that the employee's employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(4) The duty to hold a meeting does not apply if—

(a) it is not practicable to hold a meeting within the period that is reasonable, and

(b) the employer complies with sub-paragraph (5).

(5) Where sub-paragraph (4)(a) applies, the employer may consider the request without holding a meeting provided he considers any representations made by the employee.

(6) The employer shall give the employee notice of his decision on the request as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (4) and (5) apply, his consideration of the request.

(7) A notice given under sub-paragraph (6) shall—

(a) where the decision is to accept the request, state that it is accepted and—

(i) where the decision is that the employee's employment will continue indefinitely, state that fact, or

(ii) where the decision is that the employee's employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end,

(b) where the decision is to refuse the request, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect,

and, in the case of a notice falling within paragraph (b), and of a notice referred to in paragraph (a) that specifies a period shorter than the period proposed by the employee in the request, shall inform the employee of his right to appeal.

(8) All notices given under this paragraph shall be in writing and be dated.

Appeals E+W+S

8.—(1) An employee is entitled to appeal against—

(a) a decision of his employer to refuse the request, or

(b) a decision of his employer to accept the request where the notice given under paragraph 7(6) states as mentioned in paragraph 7(7)(a)(ii) and specifies a period shorter than the period proposed by the employee in the request,

by giving notice in accordance with sub-paragraph (2) as soon as is reasonably practicable after the date of the notice given under paragraph 7(6).

(2) A notice of appeal under sub-paragraph (1) shall set out the grounds of appeal.

(3) The employer shall hold a meeting with the employee to discuss an appeal within a reasonable period after the date of the notice of appeal.

(4) The employer and employee must take all reasonable steps to attend the meeting.

(5) The duty to hold a meeting does not apply if, before the end of the period that is reasonable—

(a) the employer and employee agree that the employee's employment will continue indefinitely and the employer gives notice to the employee to that effect; or

(b) the employer and employee agree that the employee's employment will continue for an agreed period and the employer gives notice to the employee of the length of that period or of the date on which it will end.

(6) The duty to hold a meeting does not apply if—

(a) it is not practicable to hold a meeting within the period that is reasonable, and

(b) the employer complies with sub-paragraph (7).

(7) Where sub-paragraph (6)(a) applies, the employer may consider the appeal without holding a meeting provided he considers any representations made by the employee.

(8) The employer shall give the employee notice of his decision on the appeal as soon as is reasonably practicable after the date of the meeting or, if sub-paragraphs (6) and (7) apply, his consideration of the appeal.

(9) A notice under sub-paragraph (8) shall—

(a) where the decision is to accept the appeal, state that it is accepted and—

(i) where the decision is that the employee's employment will continue indefinitely, state that fact, or

(ii) where the decision is that the employee's employment will continue for a further period, state that fact and specify the length of the period or the date on which it will end,

(b) where the decision is to refuse the appeal, confirm that the employer wishes to retire the employee and the date on which the dismissal is to take effect.

(10) All notices given under this paragraph shall be in writing and be dated.

Right to be accompanied E+W+S

9.—(1) This paragraph applies where—

(a) a meeting is held under paragraph 7 or 8, and

(b) the employee reasonably requests to be accompanied at the meeting.

(2) Where this paragraph applies the employer must permit the employee to be accompanied at the meeting by one companion who—

(a) is chosen by the employee;

(b) is a worker employed by the same employer as the employee;

(c) is to be permitted to address the meeting (but not to answer questions on behalf of the employee); and

(d) is to be permitted to confer with the employee during the meeting.

(3) If—

(a) an employee has a right under this paragraph to be accompanied at a meeting,

(b) his chosen companion will not be available at the time proposed for the meeting by the employer, and

(c) the employee proposes an alternative time which satisfies sub-paragraph (4),

the employer must postpone the meeting to the time proposed by the employee.

(4) An alternative time must—

(a) be convenient for employer, employee and companion, and

(b) fall before the end of the period of seven days beginning with the first day after the day proposed by the employer.

(5) An employer shall permit a worker to take time off during working hours for the purpose of accompanying an employee in accordance with a request under sub-paragraph (1)(b).

(6) Sections 168(3) and (4), 169 and 171 to 173 of the Trade Union and Labour Relations (Consolidation) Act 1992 M4 (time off for carrying out trade union duties) shall apply in relation to sub-paragraph (5) above as they apply in relation to section 168(1) of that Act.

Marginal Citations

M4 1992 c. 52; sections 171 and 173 have been amended by section 1(2)(a) of the Employment Rights (Dispute Resolution) Act 1998 (c. 8). There are other amendments to these provisions which are not relevant for the purposes of these Regulations.

Dismissal before request considered E+W+S

10.—(1) This paragraph applies where—

(a) by virtue of paragraph 6 an employer is under a duty to consider a request;

(b) the employer dismisses the employee;

(c) that dismissal is the contemplated dismissal to which the request relates; and

(d) the operative date of termination would, but for sub-paragraph (3), fall on or before the day on which the employer gives notice in accordance with paragraph 7(6).

(2) Subject to sub-paragraph (4), the contract of employment shall continue in force for all purposes, including the purpose of determining for any purpose the period for which the employee has been continuously employed, until the day following that on which the notice under paragraph 7(6) is given.

(3) The day following the day on which that notice is given shall supersede—

(a) the date mentioned in sub-paragraph (1)(d) as the operative date of termination; and

(b) the date defined as the intended date of retirement in paragraph (a), (b) or (c) of paragraph 1(2) as the intended date of retirement.

(4) Any continuation of the contract of employment under sub-paragraph (2) shall be disregarded when determining the operative date of termination for the purposes of sections 98ZA to 98ZH of the 1996 Act.

Complaint to employment tribunal: failure to comply with paragraph 2 E+W+S

11.—(1) An employee may present a complaint to an employment tribunal that his employer has failed to comply with the duty to notify him in paragraph 2.

(2) A tribunal shall not consider a complaint under this paragraph unless the complaint is presented—

(a) before the end of the period of three months beginning with—

(i) the last day permitted to the employer by paragraph 2 for complying with the duty to notify, or

(ii) if the employee did not then know the date that would be the intended date of retirement, the first day on which he knew or should have known that date; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the employee of such amount, not exceeding 8 weeks' pay, as the tribunal considers just and equitable in all the circumstances.

(4) Chapter 2 of Part 14 of the 1996 Act (calculation of a week's pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the complaint was presented or, if earlier, the operative date of termination.

(5) The limit in section 227(1) of the 1996 Act M5 (maximum amount of a week's pay) shall apply for the purposes of sub-paragraph (3).

Marginal Citations

M5 1996 c. 18; the amount laid down in section 227 may be increased or decreased by Order made by the Secretary of State under section 34 of the Employment Relations Act 1999. The amount laid down in section 227 is currently £290: see S.I. 2005/3352.

Complaint to employment tribunal: denial of right to be accompanied E+W+S

12.—(1) An employee may present a complaint to an employment tribunal that his employer has failed, or threatened to fail, to comply with paragraph 9(2) or (3).

(2) A tribunal shall not consider a complaint under this paragraph in relation to a failure or threat unless the complaint is presented—

(a) before the end of the period of three months beginning with the date of the failure or threat; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3) Where a tribunal finds that a complaint under this paragraph is well-founded it shall order the employer to pay compensation to the worker of an amount not exceeding two weeks' pay.

(4) Chapter 2 of Part 14 of the 1996 Act (calculation of a week's pay) shall apply for the purposes of sub-paragraph (3); and in applying that Chapter the calculation date shall be taken to be the date on which the relevant meeting took place (or was to have taken place).

(5) The limit in section 227(1) of the 1996 Act (maximum amount of a week's pay) shall apply for the purposes of sub-paragraph (3).

Detriment and dismissal E+W+S

13.—(1) An employee has the right not to be subjected to any detriment by any act by his employer done on the ground that he exercised or sought to exercise his right to be accompanied in accordance with paragraph 9.

(2) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that he accompanied or sought to accompany an employee pursuant to a request under paragraph 9.

(3) Section 48 of the 1996 Act shall apply in relation to contraventions of sub-paragraph (1) or (2) above as it applies in relation to contraventions of certain sections of that Act.

(4) Sub-paragraph (2) does not apply where the worker is an employee and the detriment in question amounts to dismissal (within the meaning of Part 10 of the 1996 Act).

(5) An employee who is dismissed shall be regarded for the purposes of Part 10 of the 1996 Act as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he—

(a) exercised or sought to exercise his right to be accompanied in accordance with paragraph 9, or

(b) accompanied or sought to accompany an employee pursuant to a request under that paragraph.

(6) Sections 128 to 132 of the 1996 Act (interim relief) shall apply in relation to dismissal for the reason specified in sub-paragraph (5)(a) or (b) above as they apply in relation to dismissal for a reason specified in section 128(1)(b) of that Act.

Regulation 48

F1 SCHEDULE 7 E+W+S Duty to consider working beyond retirement - transitional provisions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation 49(1)

SCHEDULE 8 E+W+S Amendments to legislation and related transitional provisions

Part 1 E+W+S Primary legislation

The Mines and Quarries Act 1954 E+W+S

1.  The Mines and Quarries Act 1954 M6 is amended as follows.

Marginal Citations

M6 1954 c. 70; relevant amendments to sections 42, 43 and 44 are made by the Employment Act 1989 (c. 38), sections 9 and 29(4) and by Schedule 7.

2.—(1) In section 42(1) (charge of winding and rope haulage apparatus when persons are carried) omit the words “who has attained the age of twenty-two years”. E+W+S

(2) In section 43(2) (charge of winding and rope haulage apparatus when persons are not carried) omit the words “who has attained the age of eighteen years”.

(3) In section 44 (charge of conveyors at working faces) omit the words “who has attained the age of eighteen years”.

The Parliamentary Commissioner Act 1967 E+W+S

3.  The Parliamentary Commissioner Act 1967 M7 is amended as follows—

Marginal Citations

M7 1967 c. 13; section 1(3A) was inserted by the Parliamentary and Health Services Commissioners Act 1987 (c. 13), section 2(1).

4.—(1) Section 1 (appointment and tenure of office) is amended in accordance with this paragraph. E+W+S

(2) In subsection (2) omit the words from “, and any person” to “during good behaviour”.

(3) After subsection (2) insert—

“(2A) A person appointed to be the Commissioner shall hold office until the end of the period for which he is appointed.

(2B) That period must be not more than seven years.

(2C) Subsection (2A) is subject to subsections (3) and (3A).”.

(4) For subsection (3) substitute—

“(3) A person appointed to be the Commissioner may be—

(a) relieved of office by Her Majesty at his own request, or

(b) removed from office by Her Majesty, on the ground of misbehaviour, in consequence of Addresses from both Houses of Parliament.”.

(5) After subsection (3A) insert—

“(3B) A person appointed to be the Commissioner is not eligible for re-appointment.”.

5.—(1) Section 3A M8 (appointment of acting Commissioner) is amended in accordance with this paragraph. E+W+S

(2) After subsection (1) insert—

“(1A) A person appointed to act as the Commissioner (“an acting Commissioner”) may have held office as the Commissioner.

(1B) A person appointed as an acting Commissioner is eligible for appointment as the Commissioner unless he has already held office as the Commissioner.”.

(3) In subsection (2) for the words “under this section” substitute “ as an acting Commissioner ”.

(4) For subsection (3) substitute—

“(3) A person appointed as an acting Commissioner shall, while he holds office, be treated for all purposes, except for the purposes of section 1 and 2, and this section of this Act, as the Commissioner.”.

Marginal Citations

M8 Section 3A was inserted by the Parliamentary and Health Service Commissioners Act 1987 (c. 13), section 6(1).

6.  The amendments made to the Parliamentary Commissioner Act 1967 apply in relation to appointments made on or after the commencement date. E+W+S

The Pilotage Act 1987 E+W+S

7.—(1) The Pilotage Act 1987 M9 is amended in accordance with this paragraph.

(2) In section 3(2) (authorisation of pilots) omit the word “age,”.

Marginal Citations

M9 1987 c. 21.

The Social Security Contributions and Benefits Act 1992 E+W+S

8.  The Social Security Contributions and Benefits Act 1992 M10 is amended as follows.

Marginal Citations

M10 1992 c. 4; the definition of “employee” has been amended but in a way not relevant for the purposes of these Regulations. The definition of “employer” has been amended by the Social Security Act 1998, (c.14), section 86(1), and Schedule 7, paragraph 74.

9.—(1) Section 163(1) (interpretation of Part 11 and supplementary provisions) is amended in accordance with this paragraph. E+W+S

(2) In the definition of “employee” omit paragraph (b) and the word “and” preceding it.

(3) For the definition of “employer” substitute—

““employer”, in relation to an employee and a contract of service of his, means a person who—

(a) under section 6 above is liable to pay secondary Class 1 contributions in relation to any earnings of the employee under the contract, or

(b) would be liable to pay such contributions but for—

(i) the condition in section 6(1)(b), or

(ii) the employee being under the age of 16:”.

10.—(1) Section 171(1) M11 (interpretation of Part 12 and supplementary provisions) is amended in accordance with this paragraph. E+W+S

(2) In the definition of “employee” omit paragraph (b) and the word “and” preceding it.

(3) For the definition of “employer” substitute—

““employer”, in relation to a woman who is an employee, means a person who—

(a) under section 6 above is liable to pay secondary Class 1 contributions in relation to any of her earnings; or

(b) would be liable to pay such contributions but for—

(i) the condition in section 6(1)(b), or

(ii) the employee being under the age of 16;”.

(4) This paragraph applies in relation to any case where the expected week of confinement begins on or after 14th January 2007.

Marginal Citations

M11 The definition of “employee” has been amended but in a way not relevant for the purposes of these Regulations. The definition of “employer” has been amended by the Social Security Act 1998, section 86(1), and Schedule 7, paragraph 75.

11.—(1) Section 171ZJ M12 (Part 12ZA: supplementary) is amended in accordance with this paragraph. E+W+S

(2) In subsection (1) for the definition of “employer” substitute—

““employer”, in relation to a person who is an employee, means a person who—

(a) under section 6 above is, liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; or

(b) would be liable to pay such contributions but for—

(i) the condition in section 6(1)(b), or

(ii) the employee being under the age of 16;”.

(3) In subsection (2) omit paragraph (b) and the word “and” preceding it.

(4) This paragraph applies in relation to an entitlement to—

(a) statutory paternity pay (birth) in respect of children whose expected week of birth begins on or after 14th January 2007;

(b) statutory paternity pay (adoption) in respect of children—

(i) matched with a person who is notified of having been matched on or after the commencement date; or

(ii) placed for adoption on or after the commencement date.

Marginal Citations

M12 Section 171ZJ was inserted by the Employment Act 2002 (c. 22), section 2.

12.—(1) Section 171ZS M13 (Part 12ZB: supplementary) is amended in accordance with this paragraph. E+W+S

(2) In subsection (1) for the definition of “employer” substitute—

““employer”, in relation to a person who is an employee, means a person who—

(a) under section 6 above is liable to pay secondary Class 1 contributions in relation to any of the earnings of the person who is an employee; or

(b) would be liable to pay such contributions but for—

(ii) the condition in section 6(1)(b), or

(ii) the employee being under the age of 16;”.

(3) In subsection (2) omit paragraph (b) and the word “and” preceding it.

(4) This paragraph applies in relation to an entitlement to statutory adoption pay in respect of children—

(a) matched with a person who is notified of having been matched on or after the commencement date; or

(b) placed for adoption on or after that commencement.

Marginal Citations

M13 Section 171ZS was inserted by the Employment Act 2002, section 4.

13.—(1) In Schedule 11 omit paragraph 2(a) (period of entitlement not to arise if at the relevant date the employee is over 65). E+W+S

(2) Sub-paragraph (1) applies in relation to a period of incapacity for work which—

(a) begins on or after the commencement date, or

(b) begins before and continues on or after the commencement date.

(3) But in a case falling within sub-paragraph (2)(b), sub-paragraph (1) does not affect the application of paragraph 1 of Schedule 11 to the 1992 Act in relation to the part of the period of incapacity for work that falls before the commencement date.

The Health Service Commissioners Act 1993 E+W+S

14.  The Health Service Commissioners Act 1993 M14 is amended as follows.

Marginal Citations

M14 1993 c. 46.

15.—(1) Schedule 1 (the English Commissioner) M15 is amended in accordance with this paragraph. E+W+S

(2) For paragraph 1 (appointment of Commissioners) substitute the following new paragraphs—

“1.   Her Majesty may by Letters Patent appoint a person to be the Commissioner.

1A.   Subject to paragraphs 1C and 1D a person appointed to be the Commissioner shall hold office until the end of the period for which he is appointed.

1B.   That period must be not more than seven years.

1C.   A person appointed to be the Commissioner may be relieved of office by Her Majesty at his own request.

1D.   A person appointed to be the Commissioner may be removed from office by Her Majesty, on the ground of misbehaviour, in consequence of Addresses from both Houses of Parliament.

1E.   A person appointed to be the Commissioner is not eligible for re-appointment.”.

(3) In paragraph 2 (appointment of acting Commissioners)—

(a) after sub-paragraph (1) insert—

“(1A) A person appointed to act as the Commissioner (“an acting Commissioner”) may have held office as the Commissioner.

(1B) A person appointed as an acting Commissioner is eligible for appointment as the Commissioner unless he has already held office as the Commissioner.”;

(b) in sub-paragraph (2) for the words “under this paragraph” substitute “ as acting Commissioner, ”; and

(c) for sub-paragraph (3), substitute—

“(3) A person appointed as an acting Commissioner shall, while he holds office, be treated for all purposes, except for the purposes of paragraphs 1, 4 to 10 and this paragraph, as the Commissioner.”.

Marginal Citations

M15 The schedule heading was amended by the Government of Wales Act 1998 (c. 38), section 112, and Schedule 10, paragraph 16(2).

16.  The amendments made to the Health Service Commissioners Act 1993 apply in relation to appointments made on or after the commencement date. E+W+S

The Statutory Sick Pay Act 1994 E+W+S

17.—(1) The Statutory Sick Pay Act 1994 M16 is amended in accordance with this paragraph.

(2) In section 1(2) omit the words after paragraph (b).

Marginal Citations

M16 1994 c. 2.

The Employment Tribunals Act 1996 E+W+S

18.  The Employment Tribunals Act 1996 M17 is amended as follows.

Marginal Citations

M17 1996 c. 17.

19.—(1) Section 18(1) M18 (conciliation) is amended in accordance with this paragraph. E+W+S

(2) At the end of paragraph (p), omit “or”.

(3) After paragraph (q), insert

“or

(r) under regulation 36 of the Employment Equality (Age) Regulations 2006.”.

Marginal Citations

M18 Section 18(1)(p) was amended by S.I. 2004/3426, regulation 34(c). Section 18(1)(q) was inserted by S.I. 2006/349, Schedule 1, paragraph 9.

20.—(1) Section 21(1) M19 (jurisdiction of Appeal Tribunal) is amended in accordance with this paragraph. E+W+S

(2) At the end of paragraph (q), omit “or”.

(3) After paragraph (r) insert—

“or

(s) the Employment Equality (Age) Regulations 2006.”.

Marginal Citations

M19 Section 21(1)(q) was amended by S.I.2004/3426, regulation 37(c). Section 21(r) was inserted by S.I. 2006/349, Schedule 1, paragraph 10.

The Employment Rights Act 1996 E+W+S

21.  The 1996 Act is amended as follows.

22.—(1) Section 98 (fairness of dismissal: general) is amended as follows. E+W+S

(2) In subsection (2), after paragraph (b) insert—

“(ba) is retirement of the employee,”.

(3) After subsection (2) insert—

“(2A) Subsections (1) and (2) are subject to sections 98ZA to 98ZF.”.

(4) After subsection (3) insert—

“(3A) In any case where the employer has fulfilled the requirements of subsection (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with section 98ZG.”.

(5) In subsection (4) for “Where” substitute “ In any other case where ”.

23.  After section 98 insert— E+W+S

“Retirement E+W+S

98ZA.    No normal retirement age: dismissal before 65

(1) This section applies to the dismissal of an employee if—

(a) the employee has no normal retirement age, and

(b) the operative date of termination falls before the date when the employee reaches the age of 65.

(2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.

98ZB.    No normal retirement age: dismissal at or after 65

(1) This section applies to the dismissal of an employee if—

(a) the employee has no normal retirement age, and

(b) the operative date of termination falls on or after the date when the employee reaches the age of 65.

(2) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.

(3) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but

(b) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(4) In a case where—

(a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) there is an intended date of retirement in relation to the dismissal, but

(c) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal.

98ZC.    Normal retirement age: dismissal before retirement age

(1) This section applies to the dismissal of an employee if—

(a) the employee has a normal retirement age, and

(b) the operative date of termination falls before the date when the employee reaches the normal retirement age.

(2) Retirement of the employee shall not be taken to be the reason (or a reason) for the dismissal.

98ZD.    Normal retirement age 65 or higher: dismissal at or after retirement age

(1) This section applies to the dismissal of an employee if—

(a) the employee has a normal retirement age,

(b) the normal retirement age is 65 or higher, and

(c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age.

(2) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for the dismissal by the employer and any other reason shall be disregarded.

(3) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but

(b) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(4) In a case where—

(a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) there is an intended date of retirement in relation to the dismissal, but

(c) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(5) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal.

98ZE.    Normal retirement age below 65: dismissal at or after retirement age

(1) This section applies to the dismissal of an employee if—

(a) the employee has a normal retirement age,

(b) the normal retirement age is below 65, and

(c) the operative date of termination falls on or after the date when the employee reaches the normal retirement age.

(2) If it is unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age, retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(3) Subsections (4) to (7) apply if it is not unlawful discrimination under the 2006 Regulations for the employee to have that normal retirement age.

(4) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) the contract of employment terminates on the intended date of retirement,

retirement of the employee shall be taken to be the only reason for dismissal by the employer and any other reason shall be disregarded.

(5) In a case where—

(a) the employer has notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, but

(b) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(6) In a case where—

(a) the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, and

(b) there is an intended date of retirement in relation to the dismissal, but

(c) the contract of employment terminates before the intended date of retirement,

retirement of the employee shall not be taken to be the reason (or a reason) for dismissal.

(7) In all other cases where the employer has not notified the employee in accordance with paragraph 2 of Schedule 6 to the 2006 Regulations, particular regard shall be had to the matters in section 98ZF when determining the reason (or principal reason) for dismissal

98ZF.    Reason for dismissal: particular matters

(1) These are the matters to which particular regard is to be had in accordance with section 98ZB(5), 98ZD(5) or 98ZE(7)—

(a) whether or not the employer has notified the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations;

(b) if the employer has notified the employee in accordance with that paragraph, how long before the notified retirement date the notification was given;

(c) whether or not the employer has followed, or sought to follow, the procedures in paragraph 7 of Schedule 6 to the 2006 Regulations.

(2) In subsection (1)(b) “notified retirement date” means the date notified to the employee in accordance with paragraph 4 of Schedule 6 to the 2006 Regulations as the date on which the employer intends to retire the employee.

98ZG.    Retirement dismissals: fairness

(1) This section applies if the reason (or principal reason) for a dismissal is retirement of the employee.

(2) The employee shall be regarded as unfairly dismissed if, and only if, there has been a failure on the part of the employer to comply with an obligation imposed on him by any of the following provisions of Schedule 6 to the 2006 Regulations—

(a) paragraph 4 (notification of retirement, if not already given under paragraph 2),

(b) paragraphs 6 and 7 (duty to consider employee's request not to be retired),

(c) paragraph 8 (duty to consider appeal against decision to refuse request not to be retired).

98ZH.    Interpretation

In sections 98ZA to 98ZG—

“2006 Regulations” means the Employment Equality (Age) Regulations 2006;

“intended date of retirement” means the date which, by virtue of paragraph 1(2) of Schedule 6 to the 2006 Regulations, is the intended date of retirement in relation to a particular dismissal;

“normal retirement age”, in relation to an employee, means the age at which employees in the employer's undertaking who hold, or have held, the same kind of position as the employee are normally required to retire;

“operative date of termination” means—

(a)

where the employer terminates the employee's contract of employment by notice, the date on which the notice expires, or

(b)

where the employer terminates the contract of employment without notice, the date on which the termination takes effect.

Other dismissals”.

24.  In section 108 M20 (qualifying period of employment) in subsection (3) (cases where no qualifying period of employment is required)— E+W+S

(a) at the end of paragraph (l) omit “or”; and

(b) after paragraph (m) insert—

“or

(n) paragraph (a) or (b) of paragraph 13(5) of Schedule 6 to the Employment Equality (Age) Regulations 2006 applies.”.

Marginal Citations

M20 Section 108(1) was amended by S.I. 2004/3426, regulation 31(2)(b). Section 108(1)(m) was inserted by S.I. 2006/349, Schedule 1, paragraph 6.

25.  Omit section 109M21 (upper age limit on unfair dismissal right). E+W+S

Marginal Citations

M21 Section 109 has been amended but the amendments are not relevant for the purposes of these Regulations.

26.—(1) Section 112 M22 (remedies for unfair dismissal: orders and compensation) is amended as follows. E+W+S

(2) In subsection (5)(a) after “section” insert “ 98ZG or ”.

Marginal Citations

M22 Subsection (5) was inserted by the Employment Act 2002 (c. 22), section 34(3).

27.—(1) Section 119 (basic award) is amended as follows. E+W+S

(2) Omit subsections (4) and (5).

28.—(1) Section 120 M23 (basic award: minimum in certain cases) is amended as follows. E+W+S

(2) In subsection (1A) after “section” insert “ 98ZG or ”.

Marginal Citations

M23 Subsection (1A) inserted by the Employment Act 2002, sections 34(1) and (6).

29.  In section 126(1) M24 (acts which are both unfair dismissal and discrimination), for paragraph (b) substitute— E+W+S

“(b) any one or more of the following—

(i) the Sex Discrimination Act 1975;

(ii) the Race Relations Act 1976;

(iii) the Disability Discrimination Act 1995;

(iv) the Employment Equality (Sexual Orientation) Regulations 2003;

(v) the Employment Equality (Religion or Belief) Regulations 2003;

(vi) the Employment Equality (Age) Regulations 2006.”.

Marginal Citations

M24 Section 126(1)(b) was substituted by the Employment Rights (Dispute Resolution) Act 1998 (c. 8), section 14(3), and has been amended since, but the amendments are not relevant for the purposes of these Regulations.

30.  Section 156(upper age limit) is repealed. E+W+S

31.  Section 158 (pension rights) is repealed. E+W+S

32.—(1) Section 162 (amount of a redundancy payment) is amended in accordance with this paragraph. E+W+S

(2) Subsections (4), (5) and (8) are repealed.

(3) In subsection (6), for the words “Subsections (1) to (5)”substitute “ Subsections (1) to (3) ”.

33.  In relation to any case where the date that is the relevant date by virtue of section 153 of the 1996 Act falls before the commencement date, paragraphs 30 to 32 do not apply. E+W+S

34.—(1) Section 209 (powers to amend Act) is amended as follows. E+W+S

(2) In subsection (5)M25 omit “109(1),”.

Marginal Citations

M25 Section 209(5) was amended by the Employment Relations Act 1999 (c. 26), section 44 and Schedule 9.

35.—(1) Section 211 (period of continuous employment) is amended in accordance with this paragraph. E+W+S

(2) In paragraph (a) of subsection (1) for the words “subsections (2) and” substitute “ subsection ”.

(3) Subsection (2) is repealed.

The Employment Act 2002 E+W+S

36.—(1) The Employment Act 2002 is amended in accordance with this paragraph.

(2) At the end of each of the following Schedules—

(a) Schedule 3 (tribunal jurisdictions to which section 31 applies for adjustment of awards for non-completion of statutory procedure);

(b) Schedule 4 (tribunal jurisdictions to which section 32 applies for complaints where the employee must first submit a statement of grievance to employer); and

(c) Schedule 5 (tribunal jurisdictions to which section 38 applies in relation to proceedings where the employer has failed to give a statement of employment particulars),

insert— “ Regulation 36 of the Employment Equality (Age) Regulations 2006 (discrimination in the employment field) ”.

The Equality Act 2006 E+W+S

37.  The Equality Act 2006 M26 is amended as follows.

Marginal Citations

M26 2006 c. 3.

38.—(1) Section 14(1)(codes of practice) is amended in accordance with this paragraph. E+W+S

(2) At the end of paragraph (g) omit “and”.

(3) After paragraph (h) insert—

“and

(i) Parts 2 and 3 of the Employment Equality (Age) Regulations 2006.”.

39.—(1) Section 27(1) (conciliation) is amended in accordance with this paragraph. E+W+S

(2) At the end of paragraph (f) omit “or”.

(3) After paragraph (g) insert—

“or

(h) regulation 39 of the Employment Equality (Age) Regulations 2006 (Jurisdiction of County and Sheriff Courts).”.

40.—(1) Section 33(1) (equality and human rights enactments) is amended in accordance with this paragraph. E+W+S

(2) At the end of paragraph (g) omit “and”.

(3) After paragraph (h) insert—

“and

(i) the Employment Equality (Age) Regulations 2006.”.

Part 2 E+W+S Other legislation

41.—(1) The Coal and Other Mines (Locomotives) Regulations 1956 M27 , Schedule 1 to the Coal and Other Mines (Locomotives) Order 1956 is amended in accordance with this paragraph. E+W+S

(2) In regulation 17(1) (drivers of locomotives) omit the words “and no appointed driver shall operate a locomotive hauling persons in vehicles unless he has attained the age of—

(a) in the case of a mine of shale, eighteen years;

(b) in the case of any other mine, twenty-one years“.

Marginal Citations

M27 S.I. 1956/1771.

42.—(1) The Stratified Ironstone, Shale and Fireclay Mines (Explosives) Regulations 1956 M28 are amended in accordance with this paragraph. E+W+S

(2) In regulation 3 (qualification of shot firers) omit the words “he has attained the age of twenty-one years; and”.

Marginal Citations

M28 S.I. 1956/1943.

43.—(1) The Miscellaneous Mines (Explosives) Regulations 1959 M29 are amended in accordance with this paragraph. E+W+S

(2) Omit regulation 6(2).

(3) In regulation 8(2) (control of issue of detonators) omit the words “has attained the age of eighteen years and”.

Marginal Citations

M29 S.I. 1959/2258.

44.—(1) The Lynemouth Mine (Diesel Vehicles and Storage Battery Vehicles) Special Regulations 1961 M30 are amended in accordance with this paragraph. E+W+S

(2) In regulation 15 after the words “Regulations 17” insert “ as amended by the Employment Equality (Age) Regulations 2006 ”.

Marginal Citations

M30 S.I.1961/2445.

45.—(1) The South Crofty Mine (Locomotive) Special Regulations 1965 M31 are amended in accordance with this paragraph. E+W+S

(2) In regulation 11(2) omit the words “has attained the age of twenty-one years and”.

Marginal Citations

M31 S.I. 1965/759.

46.—(1) The Glebe Mine (Locomotives and Diesel Vehicles) Special Regulations 1967 M32 are amended in accordance with this paragraph. E+W+S

(2) In regulation 15(2) omit the words “has attained the age of eighteen years and”.

Marginal Citations

M32 S.I. 1967/1335.

47.—(1) The Winsford Rock Salt Mine (Diesel Vehicles and Storage Battery Vehicles) Special Regulations 1971 M33 are amended in accordance with this paragraph. E+W+S

(2) In regulation 14(2) omit the words “is under the age of twenty-one years and”.

Marginal Citations

M33 S.I. 1971/50.

48.—(1) The Thoresby Mine (Cable Reel Load-Haul-Dump Vehicles) Special Regulations 1978 M34 are amended in accordance with this paragraph. E+W+S

(2) In regulation 17 after the words “Regulations 17” insert “ as amended by the Employment Equality (Age) Regulations 2006 ”.

Marginal Citations

M34 S.I. 1978/119.

49.  The Statutory Sick Pay (General) Regulations 1982 M35 are amended as follows. E+W+S

Marginal Citations

M35 S.I. 1982/894; regulation 17(2) was amended by S.I. 1999/567, regulation 13.

50.—(1) Regulation 16 (meaning of “employee”) is amended in accordance with this paragraph. E+W+S

(2) In paragraph (1)—

(a) at the beginning insert the words “ Subject to paragraph (1ZA), ”, and

(b) omit the words “over the age of 16”.

(3) After paragraph (1) insert—

“(1ZA) Any person under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 1978 had he been aged 16 or over, shall be treated as if he is aged 16 or over for the purposes of paragraph (1).”.

51.—(1) Regulation 17(2) (meaning of “earnings”) is amended in accordance with this paragraph. E+W+S

(2) At the end of sub-paragraph (a) insert “ (or would have been so excluded had he not been under the age of 16) ”.

(3) At the end of sub-paragraph (b) insert “ (or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory sick pay had he not been under the age of 16) ”.

52.  The Statutory Maternity Pay (General) Regulations 1986 M36 are amended as follows. E+W+S

Marginal Citations

M36 S.I. 1986/1960.

53.—(1) Regulation 17 (meaning of “employee”) is amended in accordance with this paragraph. E+W+S

(2) In paragraph (1)–

(a) at the beginning insert the words “ Subject to paragraph (1A), ”, and

(b) omit the words “over the age of 16”.

(3) After paragraph (1) insert—

“(1A) Any woman under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 1978 had she been aged 16 or over, shall be treated as if she is aged 16 or over for the purposes of paragraph (1).”.

54.—(1) Regulation 20(2) M37 (Meaning of “earnings”) is amended in accordance with this paragraph. E+W+S

(2) At the end of sub-paragraph (a) insert “ (or would have been so excluded had she not been under the age of 16) ”.

(3) At the end of sub-paragraph (b) insert “ (or where such a payment or amount would have been so excluded and in consequence she would not have been entitled to statutory maternity pay had she not been under the age of 16) ”.

(4) This paragraph applies in relation to any case where the expected week of confinement begins on or after 14^th January 2007.

Marginal Citations

M37 Regulation 20(2) was amended by S.I. 1999/567, regulation 12.

55.—(1) The Coal and Other Safety-Lamp Mines (Explosives) Regulations 1993 M38 are amended in accordance with this paragraph. E+W+S

(2) In regulation 4(4) (appointment of shotfirers and trainee shotfirers) omit the words “he is at least 21 years of age and”.

Marginal Citations

M38 S.I. 1993/208.

56.—(1) The Employment Tribunals (Interest on Awards In Discrimination Cases) Regulations 1996 M39 are amended in accordance with this paragraph. E+W+S

(2) In sub-paragraph (b) of the definition of “an award under the relevant legislation” in regulation 1(2) (interpretation)—

(a) after “regulation 30(1)(b) of the Employment Equality (Sexual Orientation) Regulations 2003” omit “or”; and

(b) after “regulation 30(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003” insert—

“or regulation 38(1)(b) of the Employment Equality (Age) Regulations 2006”.

Marginal Citations

M39 S.I. 1996/2803; regulation 1(2) was amended by S.I. 2003/1661, regulation 1(1), and S.I. 2003/1660, regulation 1(1).

57.—(1) The Employment Protection (Continuity of Employment) Regulations 1996 M40 are amended in accordance with this paragraph. E+W+S

(2) In regulation 2 (application)—

(a) omit the word “or” at the end of paragraph (e); and

(b) after paragraph (f) insert—

“, or

(g) a decision taken arising out of the use of the statutory duty to consider procedure contained in Schedule 6 to the Employment Equality (Age) Regulations 2006.”.

Marginal Citations

M40 S.I. 1996/3147; regulation 2(c) was inserted by S.I. 2001/1188, regulation 1(1), and regulation 2(f) was amended by S.I. 2004/752, regulation 17(e).

58.—(1) The National Minimum Wage Regulations 1999 M41 are amended in accordance with this paragraph. E+W+S

(2) Omit regulation 12(2)(a).

(3) Omit paragraphs (2) to (6) of regulation 13.

(4) In regulation 13(7) for the words “Paragraphs (1) and (2) do” substitute “ Paragraph (1) does ”.

(5) In relation to any case where, before the commencement date, a worker within the meaning of regulation 12(2) has attained the age of 26, sub-paragraph (2) does not apply.

Marginal Citations

M41 S.I. 1999/584; regulation 13 has been amended, but the amendments are not relevant for the purposes of these Regulations.

59.  The Statutory Paternity Pay and Statutory Adoption Pay (General) Regulations 2002 M42 are amended as follows. E+W+S

Marginal Citations

M42 S.I. 2002/2822.

60.—(1) Regulation 32 (Treatment of persons as employees) is amended in accordance with this paragraph. E+W+S

(2) In paragraph (1)–

(a) at the beginning insert the words “ Subject to paragraph (1A), ”, and

(b) omit the words “over the age of 16”.

(3) After paragraph (1) insert—

“(1A) Any person under the age of 16 who would have been treated as an employed earner or, as the case may be, would have been treated otherwise than as an employed earner by virtue of the Social Security (Categorisation of Earners) Regulations 1978 had he been aged 16 or over, shall be treated as if he is aged 16 or over for the purposes of paragraph (1).”.

61.—(1) Regulation 39(2) (Meaning of “earnings”) is amended in accordance with this paragraph. E+W+S

(2) At the end of sub-paragraph (a) insert “ (or would have been so excluded had he not been under the age of 16) ”.

(3) At the end of sub-paragraph (b) insert “ (or where such a payment or amount would have been so excluded and in consequence he would not have been entitled to statutory paternity pay or, as the case may be, statutory adoption pay had he not been under the age of 16) ”.

62.—(1) Schedule 1A (occupational pension schemes) to the Employment Equality (Religion or Belief) Regulations 2003 M43 is amended in accordance with this paragraph. E+W+S

(2) In paragraph 1(1)—

(a) in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers”, omit the words “as at the date of the coming into force of these Regulations”, and

(b) in the definition of “occupational pension scheme” omit the words “as at the date of the coming into force of these Regulations”.

(3) In paragraph 1(2) omit the words “as at the date of the coming into force of these Regulations”.

Marginal Citations

M43 S.I. 2003/1660; Schedule 1A was inserted by S.I. 2003/2828, regulation 3.

63.—(1) Schedule 1A (occupational pension schemes) to the Employment Equality (Sexual Orientation) Regulations 2003 M44 is amended in accordance with this paragraph. E+W+S

(2) In paragraph 1(1)—

(a) in the definition of “active member”, “deferred member”, “managers”, “pensioner member” and “trustees or managers”, omit the words “as at the date of the coming into force of these Regulations”, and

(b) in the definition of “occupational pension scheme” omit the words “as at the date of the coming into force of these Regulations”.

(3) In paragraph 1(2) omit the words “as at the date of the coming into force of these Regulations”.

Marginal Citations

M44 S.I. 2003/1661; Schedule 1A was inserted by S.I. 2003/2827, regulation 3.

64.—(1) The Employment Act 2002 (Dispute Resolution) Regulations 2004 M45 are amended in accordance with this paragraph. E+W+S

(2) In regulation 4(1) (dismissals to which the dismissal and disciplinary procedures do not apply)—

(a) omit the word “or” at the end of sub-paragraph (f); and

(b) after sub-paragraph (g) insert —

“, or

(h) the reason (or, if more than one, the principal reason) for the dismissal is retirement of the employee (to be determined in accordance with section 98ZA to 98ZF of the 1996 Act M46 )”.

Marginal Citations

M45 S.I. 2004/752.

M46 Sections 98ZA to 98ZF are inserted by regulation 49 of, and paragraph 23 of Schedule 8 to, these Regulations.

Regulation 49(2)

F1 SCHEDULE 9 E+W+S Repeals and revocations

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Explanatory Note

(This note is not part of the Regulations)

These Regulations, which are made under section 2(2) of the European Communities Act 1972 (c. 68), implement (in Great Britain) Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment (O.J. L 303, 2.12.2000, p.16) so far as it relates to discrimination on grounds of age. The Regulations make it unlawful to discriminate on grounds of age in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation, instructions to discriminate and harassment.

Direct discrimination, defined in regulation 3(1)(a), arises where a person is treated less favourably than another on grounds of his age or apparent age. Indirect discrimination, defined in regulation 3(1)(b), arises where a provision, criterion or practice, which is applied generally, puts persons of a particular age or age group at a disadvantage. Discrimination will occur where the difference in treatment or disadvantage cannot be shown to be a proportionate means of achieving a legitimate aim. Victimisation, defined in regulation 4, occurs where a person receives less favourable treatment than others by reason of the fact that he has brought (or given evidence in) proceedings, made an allegation or otherwise done anything under or by virtue of the Regulations. Instructions to discriminate are dealt with in regulation 5. It is a form of discrimination to treat a person less favourably than another because he has failed to carry out an instruction to discriminate or because he has complained about receiving such an instruction. Harassment, defined in regulation 6, occurs where a person is subjected to unwanted conduct on grounds of age with the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Regulations 7 to 24 prohibit discrimination, victimisation and harassment in the fields of employment and vocational training. In particular, they protect employees (regulation 7), contract workers (regulation 9), office-holders (including police and those seconded to the Serious Organised Crime Agency (regulations 12, 13 and 14)), and partners in firms (regulation 17). They not only prohibit discrimination etc by employers, but also by trustees and managers of occupational pension schemes (regulation 11), trade organisations (regulation 18), qualifications bodies (regulation 19), providers of vocational training (regulation 20), employment agencies (regulation 21) and institutions of further and higher education (regulation 23). By virtue of regulation 24, discrimination, victimisation or harassment occurring after the relevant relationship has ended is unlawful if it arises out of, and is closely connected to, the relationship. The Regulations also apply to Crown servants and Parliamentary staff (regulations 44, 45 and 46). Regulation 43 and Schedule 5 address the validity of discriminatory terms in contracts and collective agreements.

Not all differences of treatment on grounds of age are unlawful. There are exceptions: in regulation 27 in relation to acts done in order to comply with a statutory provision; in regulation 28 in relation to acts related to national security; in regulation 29 for positive action; in regulation 30 in relation to retirement; in regulation 31 in relation to the national minimum wage; in regulation 32 in relation to the provision of certain employment benefits based on length of service; in regulation 33 in relation to the provision of enhanced redundancy payments; and in regulation 34 in relation to the provision of life assurance cover to workers who have had to retire early on grounds of ill-health. Regulation 8 provides an exception where possessing a characteristic related to age is a genuine and determining occupational requirement for a post if it is proportionate to apply the requirement in the particular case. Schedule 2 provides exceptions for various rules, practices actions and decisions relating to occupational pension schemes.

Regulations 35 to 42 deal with enforcement and provide remedies for individuals, including compensation, by way of proceedings in employment tribunals and in the county or sheriff courts. There are special provisions about the burden of proof in those cases in regulations 37 and 40, which transfer the burden to a respondent to a case once a complainant has established facts from which a court or tribunal could conclude, in the absence of an adequate explanation, that an act of discrimination or harassment has been committed by the respondent. Regulation 41 and Schedules 3 and 4 also include a questionnaire procedure to assist complainants in obtaining information from respondents.

Schedule 6 establishes a new duty on employers to consider requests by employees to continue working beyond retirement. Schedule 7 contains transitional provisions in relation to that new duty.

Schedule 8 amends legislation containing age-discriminatory provisions that cannot be shown to be a proportionate means of achieving a legitimate aim. It also includes amendments to the Employment Rights Act 1996 (c. 18), which introduce a new potentially fair ground for dismissal of employees – dismissal on the grounds of retirement (where the duty to consider procedure in Schedule 6 has been followed).

Schedule 9 contains repeals and revocations.

A full Regulatory Impact Assessment report of the effect that these Regulations will have on the costs to business and a Transposition Note are freely available to the public from the Selected Employment Rights Branch, Bay 391, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET. Copies have also been placed in the libraries of both Houses of Parliament.