The recent public airing of Robert Pires’ contract negotiations with Arsenal football club should not only be of interest to football fans. It illustrates the far reaching effects of the forthcoming age discrimination legislation, which will have significant implications for all UK employers in general.
Mid-fielder Pires, aged 32, whose fixed-term contract expires at the end of the season, wants a three-year extension to his contract. But Arsenal’s policy is to award extensions of no more than one year for any player over the age of 30. If he does not get the extension he seeks, might he have a legal remedy to force the club’s hand?
A golden age
The Employment Equality (Age) Regulations 2006 will come into force on 1 October this year (alas, for Pires, too late for this round of negotiations). Section 7(1)(b) provides that it will be unlawful for an employer to discriminate against an employee “in the terms on which he offers that person employment”. This will include the length of any contract. Unjustifiably treating someone less favourably than another person on the grounds of their age will amount to discrimination.
The majority of cases brought under the regulations are likely to focus on the meaning of ‘justification’. The regulations actually state that the act or policy in question must be a “proportionate means of achieving a legitimate aim”, but no further guidance is given. It will therefore be up to individual tribunals and appellate courts to determine what is and isn’t justified.
Arsenal might argue that players in their 30s are past their best and tend to be more injury prone, so the club has a legitimate interest in not becoming tied into long contracts with such players. However, the situation is not so straightforward. Many young players are injury prone, and many other players continue playing at their highest level well into their 30s or even 40s. Many goalkeepers, for example, only reach their peak in their 30s.
But even if Arsenal is able to show that it has a legitimate aim, it is unlikely to succeed in showing that the policy is proportionate. Applying a blanket policy that does not take individual circumstances into account will almost certainly be disproportionate. And, given that, for example, Bolton Wanderers has just signed a 31-year-old Israeli, Idn Tal, on a three-year contract, Arsenal is unlikely to receive a sympathetic hearing in a tribunal. This view on justification is supported by the recent European Court of Justice decision in Mangold v Helm (Personnel Today, 21 March).
So how should Arsenal prepare to respond to the anti-ageism regulations?
In my view, the club should discontinue its unjustifiable blanket policy of not providing more than a one-year contract to players over the age of 30. Instead, it should look at each player on a case-by-case basis, and determine whether there is any risk to the club in offering a contract of more than one year. An offer of a one-year contract may well be justifiable if it is based, for example, on evidence of the player’s recent injury record, or by taking a standardised fitness test.
Beyond the football field, employers in general can learn lessons from this example. While most will not have specific age criteria under which they provide different terms and conditions to employees, it is important to understand that the regulations will apply to all of your decision-making processes relating to staff. You will need to ensure that any decision or policy does not actually or inadvertently disadvantage one age group without being sure that it can be objectively justified. Otherwise, although you may think it’s all over, your troubles may have only just begun.
Do not apply blanket policies that have an age element.
Consider every situation on its own merits.
Think carefully about whether there are any unintended consequences of a policy on one age group.
Consider whether the purpose of any policy would appear legitimate to an objective third party.
Consider whether the impact of the policy is proportionate to the perceived need.
For more on objective justification, see Alan Johnson’s article in next week’s issue
By Richard Linskell, partner, Dawsons Solicitors