Ireland gives us the first real taste of the impact these laws could have on the UK workplace. Its experience shows us where and how UK employers will be vulnerable when our own laws are introduced. Although Ireland only incorporated the EU directive this summer, the country’s Employment Equality Act has been in place since 1998.
The Irish experience clearly demonstrates the complexity of dealing with age discrimination at work. Nineteen per cent of its discrimination claims at employment tribunals are brought on age, and this figure looks set to rise. The UK Government has anticipated eight times as many cases will be brought on age, compared to the other new strands (sexual orientation and religion & belief), but this is probably a conservative estimate.
Overseas experience also shows age is often linked to gender discrimination issues, so it seems likely that many future sex claims will also include an age element, increasing the number of cases still further.
To encourage employers to prepare for age legislation in the absence of draft regulations, the Employers Forum on Age (EFA) is promoting comprehensive employment policy review. The organisation has taken a particularly close look at recruitment, identifying the familiar age traps employers fall into. The extent of policy change required appears daunting; on recruitment alone, EFA suggests not only re-examining all policies from the top down including development of job descriptions, advertising and interview techniques, but also monitoring the age profile of applicants at every stage.
But the learning from Ireland makes a clear case for taking this very thorough approach.
Over the past couple of years, the number of job adverts with specific age criteria has decreased markedly. At one stage every other job advert stated applicants had to be in one or another age group. This is now rare, but the language used to describe jobs still often indicates the age profile the employer is looking for, and this is certain to get UK employers into trouble beyond 2006.
In Ireland when Ryanair advertised for a ‘young, dynamic, professional’ it was successfully challenged. It tried to claim in its defence that ‘young’ referred to being ‘young at heart’. But evidence submitted at the tribunal showed that none of the 28 candidates who applied for the job were over 40 and that the interview and selection procedures used by the company were not consistent with its equal opportunities policy.
Another case challenging ageist language involved Mr Reynolds, who complained about an advert for a ‘young, confident and enthusiastic’ sales person. The equality officer decided that ‘young’ provided face-value evidence that the company intended to discriminate. (On this occasion, however, Reynolds lost the case because he did not have the relevant experience and would not have been called for interview – whatever his age – so no actual discrimination took place.)
Adverts are one of the more obvious areas of age discrimination, and perhaps easy to rectify, but few employers will anticipate job specifications and particularly asking for explicit periods of experience might lead to claims.
In Ireland, a case has been brought by an employee after the employer changed criteria in a job specification for an internal promotion.
The Sheehan v Office of Director of Public Prosecution case was based on the employer’s internal selection procedure. A draft job specification had originally required applicants to have at least 10 years’ (PQA) experience, but when the job was finally advertised it asked for only seven years’ experience. Sheehan argued that the reduction in the number of years experience discriminated against him (with more than 20 years experience) in that it widened the pool of candidates and thus allowed the appointment of a 34-year-old with only eight years experience.
The Employment Tribunal judged in this case that eligibility criteria are a matter for an employer to establish, unless there is clear evidence of discrimination. While Sheehan lost his case, this point is significant. Employers must consider carefully potential discrimination in job descriptions, particularly where defined periods of experience are requested – asking for any number of years of experience can indirectly discriminate, and employers will have to think carefully in future why they are asking for two, five or even 10 years’ experience, including how they might show it was necessary.
Interview questions should be carefully considered. Ms Hughes (53) complained that during an interview with Aer Lingus for a cabin crew position she was asked discriminatory questions relating to her age, specifically how she would react to younger employees directing her. In this case, the equality officer decided that the question was discriminatory, but that the selection procedure was not.
In particular, Aer Lingus was able to show that there was a high number of over 50s short-listed candidates and that the same proportion of over 50s were appointed as those under 50.
This highlights the difficulty employers will have in ensuring staff understand questioning on age – suggesting an employee is young or old will be as damaging as asking a discriminatory question based on sex or race. The case also highlights the role clear, fair and transparent selection procedures will play in enabling an employer to make a defence, and the advantages of age profiling applicants and recruits.
Ireland case law reveals a clear pattern of challenges brought on internal promotion. In these cases the applicant is aware of the employer’s culture and is confident enough to challenge decisions – even when comparatively small differences in age are involved.
In Gillen v Department of Health, a case that generated some publicity in the UK, a civil servant won e40,000 compensation because he was able to prove he had been discriminated against in two applications for promotion because he was over 50. He was 54 when his applications for principal officer and assistant principal posts were dealt with. He produced figures to prove that no candidate over 50 was successful in such applications between 1999 and 2003.
In another case, another Mr Reynolds took a claim against Limerick City Council. He argued that at 45 he had been discriminated against, when an applicant of 37 was appointed. The council successfully defended the claim, because it was able to provide details of the education and qualifications of the other candidates, it could demonstrate that it had followed established criteria for interview, and was able to show the marks awarded to each candidate.
The council was also able to provide age profiling evidence for the appropriate grade level. Reynolds’ claim was rejected as procedures were considered to have been conducted objectively. However, if the council had not been able to produce this evidence, the case might have had a different outcome.
It is also worth looking at some of the harassment cases, as they demonstrate how age laws will support both young and older employees. Mr O’Byrne claimed that by trying to establish a ‘young and dynamic’ image, his department had discriminated against its older staff members and specifically that he was not selected to move to a higher pay scale on this basis. He won. And in another case a young female manager won a claim for harassment that she made when she was called ‘young foolish girl’ by an older male member of staff.
Although UK employers will have to wait a little longer to see draft regulations, there is a lot we can learn from Ireland. First, that even if it is found that discrimination has not taken place, employers will have to use significant resources to successfully defend a claim. Second, that recruitment and promotion will be popular areas for claims – specifically internal recruitment where individuals have knowledge of a company’s culture and are likely to be more confident. And finally, employment procedures need to be transparent as well as fair and should be backed up by records.
Sam Mercer is director of the Employers’ Forum on Age (EFA), an employer-led initiative to promote the benefits of an age-diverse workforce. EFA is a leading authority on age issues in the workplace and offers expert advice and support to employers on managing the skills and age mix of their organisations. It has 160 employer members representing more than 14 per cent of the UK workforce
Avoiding the Age Trap, a guide to bias-free recruitment, 2004, Employers’ Forum on Age, London
Employers’ Forum on Age, www.efa.org.uk