Age question must be answered now

HR professionals must contribute to the Government’s new consultation to
develop effective discrimination laws

As employers wade through the latest Government consultation document
Towards Equality and Diversity – Implementing the Employment and Race
Directives (News, 18 December) they may be forgiven for not giving Chapter 15
due attention.

They should, however, because age laws have the potential to move forward
the age and employment debate significantly, with a positive impact on the

Alternatively, legislation based on poor consultation could displace current
good practice and leave employers and individuals considerably worse off.

Unlike race and gender discrimination laws, direct discrimination on the
grounds of age will be allowed, but only if an employer can prove the
difference in treatment is ‘objectively and reasonably justified’. This sounds
fair, but is likely to lead to heated debate.

Indirect discrimination could create dispute. While it is possible to
establish comparator pools for gender, race and disability, age is difficult.
What is young or old? This may be a legal question, but employers must ensure
the Government resolves the issue or we could be left with problems.

It is only when you carefully consider direct and indirect discrimination on
the basis of age that the complexity of forming workable law becomes apparent.

This reinforces the Employers Forum on Age campaign that government must do
more to make employers fully aware of the current consultation process, to
ensure they have at least some opportunity to consider the implications of age
discrimination law on their business.

The challenges employers are likely to face include separating experience
from age when recruiting, ensuring they are not discriminating against an older
or younger worker and managing the workforce without mandatory retirement.

Other issues involve customer demands, costs, return on investment, age as a
proxy for performance and succession planning.

The first stage in the consultation process is about encouraging employers
to look at their policies and decide if they can justify current practices. It
is vital and likely to lead to disagreement. Until employers really consider
the impact of law on their own practices, we are unable to fully understand
potential exemptions and issues for debate at the next stage of the

Age legislation will also impact on other employment law and firms must
ensure government considers the changes necessary to make age laws workable.

Timing and process will also be critical. EFA members argue that employers
need a minimum of two years to comply, once legislation is drafted. This will
impact on the process itself and while the Government’s concept of a two stage
approach to the age consultation is sensible, given the 2006 deadline, we must
ensure drafting legislation isn’t delayed.

There is already media debate on whether an age commission should be set up,
which is undoubtedly important. Rightly, employers should consider whether it
would be better policed by an age commission, or as part of one super equality
commission debate.

But is it a priority? Many argue employers should be more concerned with
debating exemptions and should not get sidetracked into an extended debate on
commission issues at this stage.

It is important that we do not forget why we are doing this. Age legislation
is not about forcing employers to recruit and retain people unable to do a job,
it is about sending out the message that the 21st century workplace focuses on
ability, not age.

By Samantha Mercer, a campaign director at the Employers Forum on Age

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