Ashfords Solicitors - Age Discrimination

Ashfords employment law expert says that the shake up, which comes into force on 1 October, could leave businesses vulnerable, and urges employers to take steps to prepare for the new regulations:

"The changes are just a month away, and will affect every aspect of employment, from recruitment to retirement, but many employers have not addressed the issue. If an age discrimination case goes against them, they could be liable for unlimited compensation. Ignorance of the new rules will not be a defence."

The new regulations will prohibit unjustified direct and indirect age discrimination, harassment and victimisation on grounds of age. The regulations will affect people of all ages.

The upper age limit for unfair dismissal will be removed, giving older workers the same rights to claim unfair dismissal as younger workers.

The legislation also introduces a new procedure which must be followed whenever an employee retires. Failure to follow that procedure could result in a finding that an employee has been automatically unfairly dismissed.

"HR managers must ensure their organisations are adequately prepared," says Michelle. "This will include reviewing policies and procedures to ensure they do not have a discriminatory effect.

"Employers will need to think carefully about whether their current practices fall foul of the regulations. For example, something as innocuous as asking for an employee's age in a job application form could form the basis of a claim.

"Employers should also beware of using potentially ageist language in recruitment, as advertisements seeking "energetic" or "mature" candidates could be discriminatory.

"The regulations will certainly have an impact on some benefits and awards that relate to length of service, which are also likely to be discriminatory unless they can be objectively justified. Using "last in, first out" for redundancy is also likely to be unlawful as it could discriminate against younger workers.

"It is vital that HR managers have good knowledge of the legislation to prevent inadvertent ageism. Attitudes won't change overnight and this is where most businesses will be vulnerable to breaking the regulations."

Forms of Discrimination

The Regulations provide that employers must not discriminate on the grounds of age (being any age, old or young) directly or indirectly.

Direct discrimination will occur where someone is treated less favourably on the grounds of his or her age or apparent age and there is no "objective justification" for the treatment.

By way of an example, refusing to take someone on because they were too young or too old would amount to direct discrimination.

Indirect discrimination is where an employer applies a provision, criterion or practice to everyone, but which puts one age group at a disadvantage and for which there is no objective justification.

An example of this would be a job advertisement requiring a "recent graduate", as this may indirectly discriminate against older workers, or requiring applicants to have held a driving licence for five years, which may indirectly discriminate against younger workers.

Unlike other types of discrimination, the defence of objective justification is available for direct discrimination as well as indirect discrimination.

This defence can be used where a legitimate aim is being pursued, such as encouraging loyalty, increasing motivation and protecting the health and safety of individuals, and the importance and benefit of that aim significantly outweighs the discriminatory effect of the age based practice (and there is no reasonable alternative).

The DTI sees this as a tough test to satisfy. It is clear that employers need to have excellent evidence if they need to rely on this defence.

Harassment occurs where, on the grounds of age, a person is subjected to unwanted conduct which has the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

Whether or not such conduct has that effect will depend upon all of the circumstances of the case, including the perception of the person who believes that they have been harassed.

Harassment covers a range of behaviour from intentional and obvious or violent bullying, to subtle and unintentional ageist jokes or comments. Even excluding an older worker from a social event such as an informal drink in the pub after work may constitute harassment!

The definition also catches behaviour which causes offence to an individual, even though the remark/behaviour was not about that individual, or was not intended to upset them.

Victimisation will occur where an employer treats an employee less favourably because the employee took action against the employer or another person under the Regulations.

Discrimination by way of instructions to discriminate is also covered by the Regulations. This happens where A treats B less favourably because B did not carry out A's unlawful instruction to discriminate, or B complained to A or another about that instruction.

Scope of the Regulations

The Regulations cover every stage of the employment relationship, from advertising a job to retirement or dismissal.

Outlined below is some practical guidance for employers to ensure their practices and procedures comply with the Regulations.

Recruitment

Those involved in the recruitment process should be trained to ensure that they have good knowledge of the Regulations to prevent inadvertent ageism. The panel should be balanced in terms of age, and all decisions regarding interviews should be reviewed for bias.

Job advertisements, application forms and instructions to recruitment agencies must focus on the skills and abilities required for the job, unless requiring a certain age or years' experience can objectively justified (which will rarely be the case).

Recruitment agencies must not discriminate in the terms they offer their services, to whom they offer their services or how they offer their services, and employers using their services must ensure this is the case, as they may find themselves liable for the agencies' discrimination.

Language which appeals to wide age groups should be included in job advertisements and job specifications, and references to age, years' experience, words such as "energetic" and "mature" and pictures inferring a requirement for a particular age group should be avoided unless they can be justified.

Vacancies should be publicised in ways most likely to attract a variety of ages to avoid discrimination, e.g. advertising only at university career fairs or online may indirectly discriminate against older candidates who are less likely to see the advert.

Job application forms should not ask for the applicant's age, date of birth or even the dates of education and work experience. This information should be kept in a separate Diversity Monitoring Form, which should be detached from the application before it is seen by the recruiters.

During Employment

Terms and conditions of employment must not conflict with the Regulations. For example, whilst benefits that depend on length of service of up to five years service are acceptable, any benefit which depends on longer service will be discriminatory, unless the "length of service" criterion fulfils a business need (such as encouraging loyalty, or rewarding motivation) and there is evidence that this is the case.

Training must be available and accessible by all members of staff, unless it can be objectively justified, or it can be shown that providing it only to a particular age group or groups redresses an imbalance.

Potential discriminatory comments in references must be avoided: for example "her work is of a very high standard, considering her age". This applies even years after an employee has left that employment.

Redundancy selection criteria must not discriminate: for example, the old "Last-In-First-Out" criterion may be discriminatory against younger workers.

Retirement and Dismissal

Finally, employees nearing retirement age benefit under the Regulations, through:

the removal of the upper qualifying age limit for unfair dismissal claims;
making it illegal for employers to set their retirement age at below 65 years (without objective justification); and

setting down a procedure under which an employee has the right to request to continue working beyond his or her retirement date (and making their retirement dismissal unfair if the employer fails to follow that procedure).

Conclusion

As the scope of the Regulations is so wide in order to cover every aspect of the employment relationship and failure to take these steps could be costly, employers will need to make sure that:

their business practices, policies and procedures are fully compliant by 1 October 2006; and
their employees are fully aware of all aspects of the Regulations.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

29th September 2006

Age Discrimination - Are You Ready?

Introduction

Key Contacts

Age Discrimination - Are You Ready?

Introduction