Age regulations: Legal Q&A

Earlier this year the Office for National Statistics released figures that showed 95,000 more people over the age of 50 were in work than in the last quarter of 2007.

But what does this increase of older people in the workplace mean for employers?

How can organisations balance the issue of age discrimination with a desire to cater for this potentially well-experienced group of employees?

Q Should we have a specific age discrimination policy in place and what should it include?

A No, there is generally no requirement to have a specific age discrimination policy. However, all employers should have a policy that shows a commitment to equal opportunities. Age is just one potential area of discrimination that should be included in the policy.

You should review your work policies that cover specific areas and ensure that these do not discriminate on the grounds of age. In particular check your policies relating to recruitment, training, promotion, rewards, harassment and retirement.

Q What are the legal implications if we decide to offer free health insurance to staff over 50?

A Restricting eligibility to employee benefits on the basis of age will be potentially discriminatory. There will be a risk of claims whether the benefits are made available to only older workers or only younger workers.

To defend against any claim being brought the employer would have to be able to show that the discrimination was justified. This means that it was a proportionate means of meeting a legitimate aim. It is difficult to see how the restriction on health insurance would pass this test.

Q Can we introduce free health checks and other benefits such as free gym membership exclusively for older employees?

A The same principles will apply where the employer to these benefits as to the health insurance. Again you should assess whether you can objectively justify the exclusion of younger workers from access to these benefits.

Q Should older employees automatically be expected to work the same amount of hours as younger staff or can we introduce flexible working hours just for this group?

A Clearly, older workers should be on the same terms and conditions as younger staff. If flexible working was made available on the basis of age this would just demonstrate that there is a discriminatory preconception of older workers being unable to keep or work the same hours as younger workers. Not only could it be challenged on the grounds that it is discriminatory to younger workers, but older workers could also view this as insulting.

Q Can we offer extra training to over 50s only, for example, in using IT systems, which many of our older employees struggle with?

A If an employee is struggling to cope with IT requirements due to a lack of skills then extra training should be offered. If you are able to show that your older workers are at a particular disadvantage in relation to IT skills because they have had less exposure to IT training opportunities in the past then it may be reasonable to limit access to the training courses by reference to the employee’s age.

Q This would be a form of permitted training-related positive action to remove a disadvantage that is linked to the employee’s age.

A However, it should not be forgotten that there is a general duty to provide support for employees and where an employee is struggling to meet the demands of the job then the need for training should be considered whatever their age.

Q Our performance bonus scheme is based on targets that we set annually. Can we ignore the shortfall of an employee who is approaching retirement as in previous years they had always met the targets?

A You must treat all employees the same when measuring targets or assessing their eligibility to a performance related benefit. Ignoring shortfalls in the older employee’s performance may seem like the right thing to do but it may be seen as discriminatory if the same shortfalls result in younger employees not receiving bonus payments.

Michael Ball, employment partner at Halliwells

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