While it’s far too soon to assess the impact of the age regulations introduced last October, it is worth taking a look at developments to date.
Late last year, we had several hysterical headlines claiming that birthday cards and Christmas parties put employers at unacceptable levels of risk and should be banned without further ado. Apparently, birthday cards open up potential claims of age-based harassment, while a Christmas party venue may offend.
Thankfully, few employers have paid this any attention. In my view, these headlines are groundless and belittle the problem of ageism at work there are far more significant issues that need exposure.
The age laws are in no way perfect. There are some major problems, specifically around insurance (and the provision of insured benefits). While the referral of the Heyday challenge on the default retirement age to the European Court of Justice has created considerable concern over the validity of any enforced public sector retirements, it also puts the future of the default retirement age for all employers at risk.
At the Employers Forum on Age, we predicted a number of potentially negative outcomes from these laws. We were particularly concerned about the position of employees over 65. The age laws give significant additional protection to anyone under 65, but leave those over 65 in a difficult position. Older employees tend to cost more to insure.
In the past, when older employees continued working, employers opted to put them on different terms and conditions. Now they can’t be treated differently. This has meant some employers have been ‘forced’ to apply the default retirement age at 65 because they are unable to bear the additional insurance costs. Before age laws, they would have probably kept them on.
The wider impact and potential withdrawal of all insured benefits (medical insurance, critical illness cover, and so on) has yet to be assessed.
Surprisingly, many employers still seem to be struggling with recruitment – where most of the simple and obvious mistakes are made.
Confusion also reigns over when you can or can’t specify periods of experience. The recruitment industry is adding to employers’ problems by giving inaccurate advice. There is nothing in the age laws that states you can’t specify and seek experience. What they do say is that time-linked experience requirements are likely to be indirectly discriminatory and may need to be justified.
Language in recruitment ads is a good barometer to show how successfully employers have understood the legislation.
There are obvious words that should no longer be used (young, youthful, old, older, mature), but it’s the more difficult terms, such as ‘junior’ and ‘senior’, that seem to be causing problems.
We will probably have to wait on case law before we are clear on what is and isn’t lawful. The terms ‘dynamic’, ‘energetic’ and ‘keen’ seem to be generating more attention than they deserve and continue to feature in ads.
While none of these words are ageist in isolation, it is when they are run together that they imply a company is seeking youthfulness. Recruiters need to get back to basics here. They need to stop trying to describe the individual, and spend more time describing the job.
Inevitably, it is going to take some time before we know whether UK employers have really undergone a transformation and the age legislation has successfully stamped out ageism, or whether employers have simply got smart enough to hide ageist practices.
How to handle the age laws
Avoid using age-related criteria wherever you can.
Before attempting an objective justification, assess your risk.
Be careful in your treatment of existing employees.
Transparency is vital – you need to be seen to be fair.
Record-keeping is important.
Train your managers – not only to avoid claims, but to support you in defending claims.
Don’t expose yourself to claims on other grounds (sex, disability, etc) when retiring people.
By Sam Mercer, director, Employers Forum on Age