Age discrimination

Following on from my column on age discrimination on 11 April 2000, what was predicted then has now happened – the EU has approved a directive which will oblige the UK to bring into force age discrimination legislation no later than late 2006. Although there are some exemptions, the new directive will have a huge impact for UK employers when dealing with applicants, employees and contractors typically over the age of 40.

Experience from countries with age discrimination laws, such as the US, makes it clear that this is a protection which is widely taken up by employees, inevitably leading to a number of claims being made which employers may at least have to settle on nuisance grounds. Age discrimination laws will also raise tricky issues for UK employers, not least because it will be more difficult now to justify replacing existing – dare I say it, older – employees with "young blood", something imperative to many employers in, for example, the emerging new media industries. The prospect of a claim for unlimited compensation could stop a new dotcom business in its tracks.

How will it be implemented?

Just how the Government will frame legislation is not clear. If, for example, it chooses to have protection against both direct and indirect discrimination, the situation could prove very difficult for employers. If, for example, there is an insistence on computer skills of a relatively new type for new recruits could be something employers would have to justify objectively to a sceptical tribunal, on the basis that it might otherwise be indirectly discriminatory against older candidates.

Even with direct discrimination, employers might face difficult situations where they would ideally prefer to have young and fit employees doing particular jobs – for example, airline staff, warehouse operatives, security guards. With both sex and race discrimination, direct discrimination cannot be justified, so even if an employer did have a cogent business reason for insisting on youthful employees in particular areas, this may not be lawful.

Faced with this problem in relation to disability discrimination, the then Conservative government took the view that it could not outlaw indirect disability discrimination. It also took the view that it would allow direct disability discrimination to be justified in appropriate circumstances, giving employers a reasonable loophole. The same approach may well be taken with age discrimination.

The Government will begin consulting on this matter in the next few years. But it is significant that while the Labour party entered office with a commitment to outlaw age discrimination, when it looked thoroughly on the practical issues, it shied away from this and introduced a code of practice instead. With no legal effect, the code is practically useless, and only a handful of employers pay lip service to it. With legal liabilities in the offing, however, this will change. With the potential ability to effectively wipe out small businesses, all employers should look carefully in due course at the proposed methods of implementation.

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