Be prepared: how to prepare for age discrimination legislation

Regular readers will be aware that the regulations outlawing age discrimination come into effect this year. October 2006 may seem a long way off but there is much to do to ensure you are not caught out. If you design your action plan now and get a head start on the audit and evaluation stages, you will have the spring and summer to implement the measures needed.


Your action plan should have four elements: audit, evaluation, implementation and training.


What needs auditing and why?


In smaller organisations, a workforce audit may mean nothing more than dedicating some time to thinking about the age profile of your workforce. Where the task is more onerous, a workforce audit checklist may help.


Your checklist should contain the following questions:




  • How many employees are approaching their contractual or normal retirement age in the next 12 to 18 months?


  • What is the age profile of the organisation (age range of senior management, trainees, team leaders and directors)?


  • Is any particular age range over or under-represented either generally or at a particular grade?


  • Are different age groups paid differently?

A workforce audit will help you to prioritise the action you will need to take. For example, if you have a high number of employees who are approaching retirement age, the focus should be on setting up procedures and training for the new retirement provisions.


Alternatively, your audit may show that certain age groups are paid differently to others. While this may be justifiable, you should check. If there are age-related anomalies, this is a potential risk area for discrimination claims.


The other aspect of the audit is documentation (see box, below)


Evaluation


Depending on the scope of the task ahead and the seriousness of the risk areas that you have identified, you now need to consider what needs to be done, by whom and when.


If changes are needed to the contract of employment, you should start consultation on these changes early. You may need to think about involving trade unions or workforce committees. The process itself needs to be managed carefully and can become protracted.


Depending on the results of your documentation audit, you may simply need to update various policies to include references to age discrimination. If your policies dealing with other forms of discrimination are up to date it is unlikely significant changes will need to be made.


However, if your documentation audit highlights areas where policies and associated documentation are lacking, steps need to be taken as soon as possible to ensure these policies are put in place.


Implementation


Make the changes. The scope and scale of this task will depend on the results of your audit and evaluation. If contractual changes need to be made, start the consultation process, agree the changes and issue an addendum or fresh contract. If policies need to be amended, make sure they are amended consistently and re-issued to all employees.


If new policies need to be set up, be prepared to invest in an expert review to ensure you have hit all the right notes.


Standard letters for use with a new procedure can be a godsend for busy managers. Time invested now setting up pro-forma documents is time well spent.


Training


Changes to policy and documentation are only half the battle. The bigger challenge is to change the mindset of senior management and decision-makers within your organisation.


You are potentially liable for the actions of your employees, so even with the right paperwork in place, you could be caught out by the actions of an employee ignorant of the new law. Anyone involved in recruitment, promotion, handling grievances, disciplinaries or appraisal systems needs to be fully aware of the impact of the new regulations.


This means educating every decision-maker (from team leaders to the MD) about how their behaviour needs to change. You should implement a training programme (see box, below).


This training needs to take place well in advance of the regulations coming into force in October. The policies and procedures should be up and running so that any practical problems can arise and be rectified.


If you effectively implement an action plan like this and make a genuine attempt to prepare for the introduction of the regulations, you will be giving your organisation the best chance of avoiding claims.


Leah de Vries is a solicitor in the employment department at law firm Andrew M Jackson


Are you age aware? Test yourself www.personneltoday.com/32620.article


Focus on: length-of-service benefits www.personneltoday.com/32530.article


Age Positive
www.agepositive.gov.uk/


Documentation to be reviewed


The following documents will need to be reviewed (and probably amended):




  • Contracts of employment, in particular, provisions dealing with:




      • contractual retirement age


      • termination of employment


      • service benefits which may have qualification based on length of service (such as notice period, holiday entitlement, pension or PHI schemes).


  • Disciplinary and grievance procedures.


  • Discrimination or harassment and bullying policies.


  • Retirement policy.


  • Any career structure or promotion/progression documentation.

Once the audit is complete you should be able to identify the scope of the impact of the new regulations (in terms of high risk areas or number of employees affected by retirement provisions etc). You will also be aware of the documentation changes necessary to ensure compliance.


Training requirements


Any training programme should include the following elements:




  • Provision of information, including the new rights being given to employees; precisely what is being outlawed and the new duties of employers.


  • Developing an understanding of the obligations of individuals as a result of the organisation’s new duties.


  • Raising awareness of any changes to the organisation’s internal policies and documentation.


  • Practical guidance about the organisation’s internal procedure for dealing with new concepts like a request to work beyond retirement age or age-related grievances.


  • Changing management perspectives to incorporate ‘retirements’ as ‘dismissals’ within the current understanding of the unfair dismissal regime.

Key points




  1. Your action plan should have four elements: audit, evaluation, implementation and training.


  2. A workforce audit will help you to prioritise the action needed.


  3. If changes are needed to the contract of employment then you should start consultation on this early in the process.


  4. Make sure policies are amended consistently and re-issued to all employees.


  5. Implement a training programme in advance of the October deadline.

This article is published in the February 2006 issue of Employers’ Law. To subscribe to the UK monthly magazine dedicated entirely to employment law for senior HR professionals go to http://www.personneltoday.com/StaticPages/EmployersLawMagazine.htm.


Also in the February issue:




  • Susan Anderson, director of HR policy at CBI, and Jenny Watson, chairwoman of the EOC, go head-to-head on equal pay issues.


  • Case round-up.


  • The trouble with the law: Employers’ Law readers reveal what they consider to be the most troublesome legislation.


  • Crossing the gender divide: anti-discrimination policies must take into account the rights of transsexuals.


  • A satisfactory outcome: Q&A on handling staff capability.


  • Policy clinic: how to create a contingency plan.

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