The new age discrimination laws recognise that differences of treatment on the grounds of age can sometimes be justified. It would be wrong to deny HR professionals the ability to take an age-based approach to setting policy where it can be objectively justified. However, arbitrary age-based decisions not supported by evidence will not be allowed.
Objective justification is a tough test. Employers will need to show that any age-based measure they take is a proportionate way of achieving a legitimate aim. If the legitimate aim can be achieved by non-discriminatory means this must take precedence. The discriminatory effect of any age-based practice should be significantly outweighed by the benefits of a legitimate aim.
A wide variety of aims may be considered legitimate, but they must correspond with a reasonable need on the part of the employer. Economic factors such as business needs and efficiency may be legitimate, but arguing that it could be more expensive not to discriminate will not be a valid justification.
Acceptable examples of objective justification could be: the need for policies that enable workers of a particular age to become more employable through vocational training; the particular training needs of the job; or the need for a reasonable period in employment before retirement.
Employers will have to show that the aim is valid. But HR professionals must be aware that the legitimate aim cannot be related to age discrimination. For example, a high street fashion store that wishes to employ younger staff to complement its brand image may not be able to justify this.
Ultimately, if challenged, it will be for the courts to decide legitimate aims and objective justification.
HR professionals should be starting to question whether their age-based practices are necessary. Do they really fulfil a business need? As the example (below left) shows, more often than not, the answer will be no.
Any age-based HR decisions will have to be underpinned by an objective justification when the new regulations come into force. If employers believe they have a sound reason to maintain any age-based rules after 1 October, they should now begin to consider their objective justifications.
In my next column, I’ll address the transitional arrangements employers should follow when retiring staff in the first six months after the introduction of the new regulations.
Replacing discriminatory practices
A construction firm hires most of its workers for physically demanding and often dangerous, labouring work. The firm sets a maximum age for its on-site workers, but accepts workers of any age for off-site roles. The firm feels that, if challenged, it can objectively justify this approach on the grounds that older workers are less physically capable than younger workers.
However, the HR director suggests that the evidence does not necessarily support this practice, as some older workers are just as capable of meeting the physical demands of the job. The firm now uses ‘performance appraisals’ when recruiting, whereby skilled workers of any age must show that they are fit enough to do the job, rather than using a practice based upon an arbitrary age.
Guidance on removing age-based discrimination from the workplace, www.acas.org.uk
For full regulations, go to www.dti.gov.uk/er/equality/age.htm
Employment relations minister Gerry Sutcliffe talks exclusively to Employers’ Law in April’s issue