Dear-Sirs by sdaferv

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									Dear Sirs

I am writing in response to the consultation paper and the draft Employment Equality (Age) Regulations 2006.

I note that the Secretary of State for Trade and Industry states in the foreword that "We cannot afford to cast on the scrap heap
some of our most experienced, skilled and valuable people on grounds of prejudice - deliberate or unthinking".

That appears to me largely to be a reference to preventing discrimination against older people.

It then goes on to say "The Legislation we are introducing under the European employment directive will apply equally to all
those in work or seeking work (or training), whatever their age".

It seems to me that neither of these statements are borne out by the Regulations themselves.

It seems to me that there is a danger that the Regulations will permit employers to cast on the scrap heap some of the most
experienced, skilled and valuable people simply because they have reached the age of 65. Furthermore the legislation will not
apply equally to all those in work or seeking work whatever their age. It is simply untrue to say that.

If that were true then why have paragraph 7 (4)?

This makes clear that employers can discriminate against somebody in the arrangements made for the purpose of determining to
whom the employer should offer employment and can discriminate by refusing to offer or deliberately not offering employment to
someone who has attained the age of 65 and who if recruited would be an employee or in crown employment. For this purpose
my understanding is that an employee also refers to a self employed person providing a personal service.

How can the foreword say that the legislation will apply equally whatever their age when there is an express exclusion which
means that people over 65 are entirely unprotected?

Furthermore if we do not want the most experienced, skilled and valuable people to be cast on the scrap heap why are
employers going to be perfectly able to do this once an employee reaches 65?

It may be argued that an employer would not wish to retire its most experienced, skilled and valuable people at 65.

Clearly it will be perfectly permissible for an employer not to do so.

If an employer did not retire a certain employee or certain employees at 65 because they were still good what would be the
consequence for an employer which did then seek to retire someone else at 65?

My understanding is that the employer would have to inform that employee of their right to request not to be retired and then
have a meeting where this is seriously considered. Presumably that employee could then seek to argue that the real reason for
them being retired is either because the employer thinks they are no longer competent or because they are redundant.

If that argument is put the employer can hardly say that the employee is being retired in accordance with the employer's normal
policy when others had not been retired at 65.

Does this not create a risk therefore to the employer that a tribunal could think that the real reason was capability or redundancy?

Faced with that risk, isn't there then a risk that employers will decide as a matter of policy that they will have to retire all people at
65 or at the very least give them notice of their intention to do that?

It seems to me that in reality people in their 60's are going to have a huge dilemma and a huge difficulty.

My understanding from messages coming out of the Department of Works and Pensions and from the media is that this country
is facing a pension crisis both in respect of company pensions and the state pension.

It would seem that a consequence of this is that we are all going to have to get used to the concept of working longer including
beyond the age of 65.

Indeed my understanding is that this specific issue of how to deal with the pensions crisis is being looked into and a report is
expected in the next few months. Might it not be possible that that report indicates that there are going to be many people in this
country who will not be able to afford to live adequately after the age of 65 simply on either their state or their company pension
and who therefore ought to be encouraged to continue to work?

Why then is this legislation not providing support to people over 65?

It seems to me that somebody in their early 60's who for financial or other reasons is certain that they wish to work beyond 65
has a dilemma. They will not necessarily know in advance that their employer is definitely going to retire them. Only 6 months
notice has to be given. If that is given they can make a request not to be retired but they can have no real confidence that would
succeed. If it doesn't succeed they have little remedy.
Might therefore that person be tempted to leave employment in their early 60's in search of other employment?

However are those people adequately protected? Clearly by the age of 65 they are not protected at all. However even up to the
age of 65 there seems to be a possibility of employers of being able to get away with not taking people on in their 60's on the
basis that they are fixing a maximum age for recruitment or promotion based on the training requirements of the post in question
or the need for a reasonable period in post before retirement (3 (ii) (c)).

I feel also that there are going to be problems in relation to employers having to demonstrate a legitimate aim and that a
particular benefit is necessary to achieve that legitimate aim.

Take for example an increase in holiday allowance after a certain period of continuous employment.

My understanding is that up to 5 years an allowance is going to be possible without any need to justify.

Many employers, as seems to be acknowledged, have a policy of providing further holidays after say 10 or 15 years.

Is the tribunal going to have to analyse, when that policy was brought in and what the aim of the people bringing it in was? Is it
going to be sufficient for the present management of the firm to say what their aim is in retaining it?

Who exactly is going to have a claim?

Is a young person going to be able to argue that they are being discriminated against because they haven't yet acquired 10 years
continuous employment? This may seem somewhat bizarre because they are going to have the potential to acquire 10 years
employment and therefore the benefit is going to be potentially just as good to them as it is to people who already acquired that
length of employment?

It would seem more logical that the people who are actually potentially going to lose out are those who are older say 56 and
therefore are not realistically likely to acquire 10 years continuous employment because they could be forced to retire.

Who is it that you envisage would be bringing these claims?

What sort of evidence in reality is going to be required to show that this sort of provision is justified to encourage and reward
loyalty?

Do you think that employers are going to want to run the risk of claims being made for equality by people relatively new to the
firm who want immediately to have the same holiday allowance as those who have been with the firm for say 20 years?

Doesn't this mean that firms are going to be likely to have to cancel those policies with immediate effect?

However clearly employers cannot cancel rights of existing employees and therefore there seems to me to be a danger that
holiday allowances for newcomers are going to be grossly inflated. I feel this is a serious practical problem which does not seem
to me have been properly thought through.

Please could you confirm these points will be carefully considered. I would very much appreciate a response if possible.

Yours faithfully

Shaun Pinchbeck
shaun.pinchbeck@heptonstalls.co.uk




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