After all the build up, age discrimination has arrived – and the Department of Trade and Industry is expecting some 8,000 tribunal cases in the first year.
And, according to international law firm Eversheds’ survey of HR directors and senior managers, confusion reigns.
The survey found that around a third of employers are planning to keep a minimum period of experience in job adverts and a quarter will continue to ask for a date of birth on application forms.
Audrey Williams, employment partner and discrimination law specialist at Eversheds, said: “The research shows that the recruitment process could become a breeding ground for potential claims.
“Continuing to ask for a minimum period of experience is a risky approach and open to challenge from younger employees. Similarly, continuing to ask for a date of birth on application forms isn’t in line with the spirit of the legislation and opens employer up for challenge.”
Enhanced redundancy payments for older workers are also causing confusion, with only a small proportion of enhanced schemes permitted. Eversheds has criticised the government for failing to provide clear guidance on the issue.
Williams added: “The issue of enhanced redundancy payments for older workers is likely to be a fertile area for age discrimination claims.
“Employers are left in a ‘lose-lose’ situation. Continuing to give older workers enhanced payments could invite claims from younger workers and levelling down payments could spark claims from older workers.
“It’s outrageous that after such a long consultation process, employers are left with regulations which give only vague and uncertain interpretation of the original European Directive.”
Acas is also warning employers to remember that age discrimination affects young workers as well as their older colleagues.
Rita Donaghy, Acas chairman, said: “It’s easy to forget that age discrimination can affect all employees, from the youngest to the oldest.
“Rightly, there has been a lot of publicity about older workers – but we shouldn’t forget that the new legislation will require employers to change their behaviour towards the younger generation as well. It is equally unacceptable to describe someone as being ‘wet behind the ears’ as it is to call them ‘over the hill’.”
Acas guidance includes:
- Recruitment advertisements – avoid specifying length of experience as this disadvantages certain age groups
- Application forms – ask for date of birth on equality monitoring forms only and use skills based forms
- Selection procedures – train managers to avoid stereotypes
- Training – make sure it is open to all employees
- Performance appraisal – set the same standards regardless of age
- Redundancy policy – review your policies: using length of service to select employees for redundancy is likely to be discriminatory
- Equality policy – add age to your current policy.
Meanwhile, the CBI has described the age regulations as ‘the most significant change in employment law in recent years’ and is urging tribunals to take a ‘common sense approach’.
Susan Anderson, CBI director of HR policy said: “Employers need to ensure that they comply with the new rules – the penalties for getting it wrong could be serious, given there is no cap on the compensation that tribunals can award. In Ireland, where such a law already exists, a fifth of all employment claims are age-related.
”This is a big adjustment for firms, and it is essential that tribunals take a common sense approach to applying the new law so that employers can continue to recruit and retain the right people for the right job.”