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Age discrimination rules that will affect GPs are due to come into force next year – Daphne Robertson says it's never too early to start planning

Remember that the nGMS regulations abolished a retirement age for doctors. Well now age discrimination rules, which will impact on your staff employment contracts and most likely on your partnership agreement too, are due to come into force.

The date is October 2006, but it is worth thinking about these things as early as possible.

It appears from the Government's consultation document that the new rules will only allow mandatory retirement ages to be imposed if they can be objectively justified.

Why? Because mandatory retirement ages will be treated as age discriminatory since

the retirement of a partner or staff member should be on grounds other than that person's age.

Include mandatory retirement age

If you wish to specify a retirement age in your staff contracts or your partnership agreement, you will need to produce supporting evidence that the measures taken to retire that person at the specified age are appropriate and necessary to achieve any one of the specific aims to be set out in the legislation.

The aims cited by the Department of Trade and Industry that might be set out in the age discrimination legislation are:

•Facilitation of employment planning. This applies when the practice has a number of people approaching retirement age at the same time. In these circumstances it may be useful for you to ensure that you get an orderly retirement of, say, your senior staff rather than, in the absence of a retirement age, risk them all leaving at the same time, whatever age they are.

•The particular training requirements of the job in question. Some jobs require a high level of health, fitness and concentration, plus extensive theoretical and practical training. General practice is one of them. Indeed, this description could be applied to practice nurses, practice managers, and maybe other staff employed by the practice.

•Encouraging and rewarding loyalty. This is relevant if you wish to link retirement to an incentive which is based on length of service. However, it is perhaps a more difficult 'aim' to use as justification.

•Health, welfare and safety. It is not immediately obvious how this aim would

be relevant for retirement from a GP

practice.

Rely on 'default' retirement age of 65

The Secretary of State for Trade and Industry and the Secretary of State for Work and Pensions announced in their joint ministerial statement on December 14, 2004, that, following extensive consultation, the Government has decided to set the default retirement age at 65.

After this time an employer can retire an employee without having to justify the decision. The Government has also recommended a new right for employees to request to work beyond the compulsory retirement age. Employers will have a duty to consider this request.

Do you want to set a contractual retirement age?

Due to the requirement to produce justification for any retirement age below 65, you could delete a retirement age completely from your contracts.

However, if you did this you would need to be confident that you have well-drafted performance indicators and exit clauses in position (for example, a green socks clause allowing you to expel a partner without grounds) so that you are not locked into an unsuitable business relationship long-term.

Alternatively, you could simply refer to the legislation, in case the default age changes. This might also avoid the need to enter into any justification if the retirement age is challenged. Remember that the retirement age can always be varied if both parties to the contract agree, or if this is made possible in the partnership agreement.

Decisions regarding the retirement age can be reviewed annually.

Code of practice

On the Government's 'Age Positive' website there is already a code of practice and guidance prepared by the Department for Work and Pensions which is designed to help employers make decisions.

These guidelines help employers to avoid discriminating against someone because of their age.

The information also covers good practice in the areas of recruitment, selection, promotion, training and development and redundancy as well as retirement.

Key points

•October 2006 – new age discrimination rules due to come into force

•There will be a 'default' retirement age of 65

•Under 65 years an employer will need to objectively justify the retirement

•You will be able, if you wish, to abolish the retirement age completely

•DTI intends to consult on draft age legislation – covering this and other age-related matters – in the summer of this year

Daphne Robertson

is the principal of DR Solicitors in London, a specialist law firm advising NHS practices

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