Preparing for a new age

Age discrimination legislation must be implemented in the UK by 2 December 2006 to comply with the EU Employment Framework Directive. The Government intends the new legislation, to be in the form of regulations, to come into force on 1 October 2006.

Employers will have less time than anticipated to prepare for the new laws once the regulations are passed, so should start taking steps now.

The timetable for passing the regulations has slipped and it is uncertain when the draft or final regulations will be available. The reason for this slippage is a disagreement between the Department for Work and Pensions and the Department of Trade and Industry over whether the new law should permit mandatory retirement ages.

However, we can be fairly clear about the likely form of part of the new law from the requirements of the European directive and the Government’s proposals as set out in its consultation document Equality and Diversity: Age Matters.

What does the new age law mean for HR?

The new law is required to implement the age discrimination sections of the EU Employment Framework Directive.

The consultation paper Equality and diversity: Age Matters sets out the Government’s proposals for the new law.

The new law will prohibit direct and indirect discrimination, harassment and victimisation in the areas of employment and vocational training.

Employers will only be able to discriminate lawfully on age grounds in recruitment, selection, promotion and training in exceptional circumstances.

Employers will need to review their recruitment and selection practices to eliminate unlawful direct and indirect discrimination.

Employers will need to review service- or experience-related pay or benefits, such as holiday entitlement, to decide whether they are likely to be able to objectively justify them.

The Government has not yet decided whether employers will be able to retain mandatory retirement ages or whether there will be a default retirement age of 70.

People will be able to bring unfair dismissal claims regardless of age, but retirement at a justifiable retirement age or the default age will be a potentially fair reason for dismissal.

Whether there is to be any upper age limit on the right to a statutory redundancy payment will depend on the Government’s decision on mandatory retirement ages.

Employers will need to review and update equal opportunities and bullying and harassment policies.
Discrimination in some training and encouragement to take up job opportunities may be lawful positive action where this occurs to compensate for past disadvantageous treatment.

Ten steps for HR to take now

1 Recruitment and selection

Do not impose age restrictions on jobs unless you are satisfied that the restrictions could be justified in accordance with the new law, or that age is a genuine occupational requirement for the job.

Think very carefully about your reasons for wishing to apply age restrictions and whether these would comply with the new law. Stereotypes based on age would not be sufficient to justify applying age requirements – for instance, saying that anyone under 25 would not be mature enough for a job or that anyone over 50 would be too slow to train. Advertisements should not contain age restrictions or words which could indicate an intention to discriminate on age grounds, such as ‘young’ or ‘mature’.

Review other job requirements to consider whether they might indirectly discriminate on age grounds. Ask yourselves why you are imposing the requirement and whether it is really needed. Is it truly essential for the job, or could the necessary competence be demonstrated in an alternative way that did not indirectly discriminate on age grounds? Indirectly discriminatory requirements should be removed if unnecessary, or be amended. If the requirement is retained, the employer’s reasons for this conclusion should be recorded in case you are called upon to justify imposition of the requirement in the future.

Examples of the types of requirements which may be regarded as indirectly discriminatory are:
– requiring candidates to have a particular number of years’ experience (which would disadvantage younger candidates)

– requiring candidates to be a graduate (which would disadvantage older candidates, educated at a time when university education was less common).

Exclusive reliance on graduate recruitment programmes to obtain applicants for particular positions could be difficult to justify, unless there were other ways in which potential applicants could learn of vacancies and apply. Advertising only in publications likely to appeal to a young readership could constitute unlawful indirect discrimination.

2 Review application forms

Review application forms and other recruitment material to ensure there are no selection criteria or standards which could indirectly discriminate without a good reason unrelated to age. Dates of birth should not be requested on application forms, but age could be requested for monitoring purposes only, on a separate form. Similarly, do not request photographs of applicants, since this could lead to age discrimination by those undertaking shortlisting. Review tests to be done by applicants to ensure they do not discriminate against people of certain ages.

3 Selection

Selection for jobs should be done on the basis of an objective analysis of candidates against the skills and competencies needed for the post. Assumptions, which could be consciously or unconsciously influenced by someone’s age, should not be made about who will or will not ‘fit in’ to the organisation.

Update policies dealing with equal opportunities and recruitment and selection to ensure they include discrimination on age grounds, and make it clear that such discrimination is unlawful and that individuals can be held personally liable as well as, or instead of, the employer.

Managers and others involved in the recruitment process will need training in the updated policies.

4 Promotion and training

Review criteria for promotion and training in the same way as criteria for recruitment and selection and update policies to ensure they include discrimination on age grounds. Those involved in promotion and training decisions will need to be given appropriate training.

5 Pay and other benefits

Review any age-linked pay or benefits (other than age-linked national minimum wage or age restrictions required by other legislation) and remove any unjustified age requirements.

Review any service- or experience-related pay or benefits and remove the criterion if it cannot be objectively justified. Take care in amending pay or benefits schemes so that they do not unilaterally change an employee’s terms and conditions of employment for the worse, otherwise you could face deduction of wages and/or constructive unfair dismissal claims.

6 Retirement age

It seems clear that, at the least, the type of blanket retirement ages across all jobs in an organisation that many employers currently have is unlikely to be permitted under the new law. Look at the factual situation affecting each group of workers and consider whether a mandatory retirement age could be justified for that group and, if so, at what age.

All employers who currently have mandatory retirement ages for all or some groups of workers should begin now to examine the reasons for having these. You may then decide to abolish mandatory retirement ages, whatever the new law says, or may want to defer a decision until the form of the new law is known.

7 Unfair dismissal

Be clear why you are terminating an employee’s employment and follow the proper procedures, whatever age the employee has reached. Even if mandatory retirement ages are permitted by the new law, retirement cannot be used as an excuse to get rid of an employee for other reasons, such as poor performance or sickness absence. If mandatory retirement ages are not permitted, you will need good cause to dismiss older employees in the same way as younger employees. Ensure that you have proper procedures for dealing with issues such as poor performance and that they are used correctly, regardless of the employee’s age. If dismissal is contemplated, for reaching a justifiable retirement age or other reasons, the statutory dismissal procedure must be followed. You will also need to be alert to possible disability issues and act accordingly.

8 Redundancy

Employers will need to wait for the final regulations for the details of the statutory redundancy payments scheme to be operated in future.

Review any company redundancy schemes or practices to remove age as a factor in selection or the calculation of payments, unless this could be justified. If you wish to use length of service as a factor in selection, examine the reasons for doing so to determine whether the use of such a factor is likely to be objectively justifiable.

9 Harassment

Update your policies dealing with bullying and harassment to ensure they include harassment on age grounds and make it clear that such harassment is unlawful and individuals can be held personally liable as well as, or instead of, the employer.

Once updated, the policies must be made known to employees and others who may be affected by them, e.g. contract workers. Training employees in the implications of the new law is likely to be necessary if the employer is to have a realistic prospect of having a “reasonable steps” defence to any claim of harassment by one employee of another. Managers may need additional training to deal with complaints about harassment.

10 Victimisation

Review your equal opportunities and bullying and harassment policies to ensure that they deal with victimisation in relation to complaints of age discrimination as well as discrimination on other grounds.

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