Next year, one of the biggest challenges facing employers over the coming decades will come into sharp focus when the age discrimination regulations come into force. If your organisation is typical of those who responded to a range of surveys over recent months, you are probably less than prepared for what is going to be as much a challenge to workplace culture as a matter of policy.
We now know what the legislation may look like following the launch of the government’s ‘Coming of Age’ consultation in July. What follows is an at-a-glance guide to what every manager needs to know to stay on the right side of the law.
Aside from the threat of legislation, there are well-rehearsed HR imperatives for tackling the age issue. Demographic changes are altering the age profile of the labour market, which will soon contain more people aged over 40 than under 40. It is estimated that by 2010, 40% of the workforce will be over 45, with 17% under 24.
Despite this, research shows that most employees (both young and old) believe that older workers are regularly discriminated against at work and that most employers have not tackled the issue of age discrimination in their workplaces. It is against this backdrop that the government is set to implement the final part of the Framework Discrimination Directive (2000/78/EC), which introduces legislation to outlaw discrimination on grounds of age in employment and vocational training.
On 14 July 2005, the Department of Trade and Industry launched the ‘Coming of Age’ consultation, seeking views on draft Employment Equality (Age) Regulations 2006. The consultation ends on 17 October 2005 and it is anticipated the legislation will come into force on 1 October 2006.
There has been a mixed reaction to the draft regulations. Although the proposals address many of the practical matters raised by employers – particularly in relation to service-related benefits and retirement age – they still leave significant areas of concern. For example, in future, employers will have to provide the same insured benefits to any employee at any age, despite the fact that insurance costs increase dramatically once a person is over 65. Cost will not be an excuse for discriminating.
The new regulations will have a significant impact on UK workplaces, and it is important that employers consider what actions they should be taking now. Each stage of the employment cycle should be examined, as discrimination can occur throughout a person’s working life.
Recruitment
- Make it clear in your recruitment policies that you recruit on the basis of skills and ability, not age.
- Age, age-related criteria or age ranges should not be used in job advertisements. An age limit will only be lawful if there is a ‘genuine occupational requirement’ or if it is objectively justified. Such cases will be rare even in sectors usually associated with a youth market, such as fashion sales. The only job for which there is a consensus that age would be a genuine occupational requirement is an actor playing a young character
- Similarly, care should be taken in choosing adjectives for job advertisements that give the impression that applicants from a particular age group are sought, such as ‘youthful’ and ‘energetic’. However well-intentioned employers are, such words may be used as ammunition for claims by disgruntled unsuccessful candidates.
- Where possible, try to avoid asking for specific qualifications or a specified number of years of experience, as these requirements may exclude applicants within a certain age group. For example, a requirement of “at least 10 years’ experience”. The employer might find it difficult to justify this requirement when faced with a claim by a 28-year-old, rejected because he had only nine years of experience.
- Age criteria should not be taken into account in employment decisions, but used only for monitoring purposes. This information should be moved from the application form to a diversity monitoring form and kept separate from the application process.
- Interviewers and those concerned with selection must be properly trained to ensure they know that age should not affect their selection. They should ask only job-related questions and record assessments of candidates against agreed selection criteria.
- An individual’s age should not be used to make judgements about abilities or fitness. Where such a judgement is required, an occupational health or medical practitioner should be consulted.
Pay and employment procedures
- Review your pay and benefits structure to ensure any service-related benefits including pay, promotion and holidays either fall within the five-year exemption or are objectively justified.
- Ensure promotion opportunities and training are available to all staff.
- Update your equal opportunities and harassment policies to include age.
- Review your redundancy policy – if it includes an age multiplier it will need to be changed.
Retirement
- Consider whether your current retirement age is appropriate. If it is below 65, it must be objectively justified.
- Consider phased retirement, flexible working and other alternatives to retiring employees.
- Introduce a ‘duty to consider’ procedure to allow employees to make a request to work past age 65.
In each of the above areas you should:
- carry out a thorough review of all personnel policies, practices and procedures to ensure they do not discriminate on grounds of age
- communicate the policies to all managers and employees, and offer training where necessary
- monitor the age profile of the organisation at regular intervals to identify
if there is any potential evidence of discrimination against particular age groups.
The advent of age discrimination legislation will require a huge shift in workplace attitudes and behaviour.
Discrimination on grounds of age does not have the same taboo as other forms of discrimination and, as a result, employers are likely to face an uphill struggle in their attempt to eradicate it. Persuading employees that birthday cards or jokes poking fun at a colleague’s age are on a par with racist and sexist insults may prove difficult, and incidents occurring now may be referred to in future litigation.
The clock is ticking for employers and it is essential that they implement changes to their workplace culture now if claims are to be avoided in the future.
Christine Jenner is a solicitor at Winckworth Sherwood
What will be prohibited?
As with the other forms of discrimination legislation, the law will prohibit direct and indirect discrimination, harassment and victimisation on the basis of age.
Direct discrimination will occur where someone treats a person less favourably on the grounds of their age than they treat or would treat other persons in a comparable situation.
Indirect discrimination will occur when a provision, criteria or practice which is applied to all employees causes a particular disadvantage to employees within a certain age group.
Harassment will occur where, on grounds of age, a person engages in unwanted conduct which has the purpose or effect of violating a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for a person of a particular age.
Victimisation will occur when an employer treats a person less favourably as a consequence of that person threatening to bring proceedings or to give evidence or information or to make any allegation concerning the employer with reference to discrimination or harassment under the age regulations.
Further information
Details of the consultation and an online response form can be found on the DTI website at
www.dti.gov.uk/er/equality/age.htm.
Further useful information can be found at
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www.agepositive.gov.uk/agepartnershipgroup/
When is discrimination allowed?
Objective justification
Employers will be able to defend both direct and indirect discrimination on the basis of age, if it can be shown that the discrimination can be objectively justified. Employers will need to provide evidence of objective justification.
Pay and benefits
Any length of service requirement for pay and benefits of five years or less will be exempted. Length of service requirements of more than five years may also be lawful if the provision of the benefit is meant to reflect experience, reward loyalty, or maintain motivation, the employer believes that there will be a business benefit resulting from this, and the requirement is applied similarly to staff in similar situations.
Occupational pensions
Certain age-related rules or practices in occupational pension schemes are exempted, including setting admission ages to schemes, the use of a normal retirement age, the use of age criteria in actuarial calculations and setting the level of benefits by reference to service.
Retirement age
The regulations will introduce a default retirement age of 65. Employers will be able to retire employees at or above this age (compulsory retirement below this age will only be lawful if it can be justified by the employer). However, a ‘duty to consider’ procedure will also be introduced in respect of any compulsory retirement.
