Rachel Heenan, of law firm Beachcroft Wansbroughs, summarises the Government’s proposals to combat age discrimination and offers practical guidance on what steps employers should take to prepare for the new legislation.

On 2 July 2003, the Government issued its long awaited consultation paper setting out its proposals to combat age discrimination in the workplace. Consultation will take place until 20 October 2003.

The Government has until 1 October 2006 to implement the age strand of the European Employment Directive (2000/78/EC) – when age discrimination in employment and vocational training will become unlawful. Draft Regulations from the Government are due in the first half of 2004.

Summary of Government proposals

(1) The Government proposes to outlaw direct discrimination and indirect discrimination on the grounds of age. Direct discrimination is defined as when a decision is made on the basis of a person’s actual or perceived age. Indirect discrimination will occur where a policy or practice applies to everyone but causes disadvantage to a certain group (young or old) unless there are good reasons for it. The definitions are consistent with new legislation covering sexual orientation and religion or belief due to be introduced within the next 12 months. Indirect discrimination will be unlawful unless it can be justified objectively. Discrimination such as harassment and victimisation on the grounds of age will also be unlawful.

(2) The obligations will apply to employers, providers of vocational training, trade unions, professional associations and employers’ organisations.

(3) In addition to being able to justify indirect discrimination, the Government proposes a number of exceptions to direct age discrimination where an employer can show that a particular policy has a specific aim and is appropriate and necessary in the particular circumstances.

(4) The Government has suggested the following as specific aims:

a. Health, welfare, and safety – the protection of employees.
b. Facilitation of employment planning – i.e. where a business has a number of people approaching retirement age at the same time.
c. The particular training requirements of the post i.e. pilots, air traffic controllers who need high levels of fitness and concentration.
d. To encourage and reward loyalty.
e. The need for a reasonable period of employment before retirement. The Government uses as an example where an employer who has justified a retirement age of 65 may decline to recruit someone who is 64 and 10 months because the costs and length of training meant that the applicant would not be sufficiently productive in that time.

(5) The Government is seeking views on whether employers should exceptionally be able to justify mandatory retirement ages in view of the fact that the Directive states that retirement ages will be unlawful unless they can be objectively justified. Despite this, the Government has suggested a default age of 70 at or after which employers could require employees to retire without having to justify their decision. The Government is obviously uneasy about this proposal as it is likely to be open to challenge in the absence of any objective justification of the default age.

(6) There are no changes proposed, however, to the fixed age for eligibility to State Pension (other than it being equalised to 65 for men and women from 2020). Occupational pension schemes will also be allowed to set ages for admission or entitlement to retirement benefits as a normal pension age is necessary for the operation of defined benefit schemes.

(7) Unfair dismissal – the Government suggests that the legislation relating to unfair dismissal be changed so anyone of any age can issue a claim subject to an employer’s justified retirement age or the Government’s default age, which will be a fair reason for dismissal. There are also plans to change the way that a basic award and statutory redundancy payment is calculated based on length of service rather than age.

What should employers do now?

Employers should take advantage of the breathing space given to them before the legislation is enacted. Although the provisions are still at consultation stage, employers should start to consider now how they will tackle age discrimination in the workplace.

Audit first

• Audit policies to make sure that they are age neutral.

• Question why certain policies are in place and whether they can be objectively justified. Simply because an employer has always had a policy is unlikely to be considered as objective justification.

• It is not just about reviewing policies – employers need to think about their work practices and whether the culture within the organisation needs to change.

Monitoring

• In order to check whether there are any hidden discriminatory effects within policies and processes, keep records of candidates who are applying for jobs, promotions and training and their different age groups.

• Monitoring of the age levels within the organisation may also reveal the effect of your policies on the structure of the workforce.

Recruitment

• All recruitment decisions should be made on the basis of merit and competence alone.

• Remove any requirements for a number of years experience, age limits or age ranges.

• Ask for relevant skills, experience and ability rather than particular qualifications when drafting job descriptions and person specifications.

• Avoid references to age restrictions in adverts such as “mature person” or “according to age and experience”. An older person will not necessarily make a good supervisor and a younger person may not have better IT skills.

• Think about where you are placing your advertisements – are you restricting your pool of potential applicants by where you place your adverts?

Selection of candidates

• When selecting candidates, employers should focus on skills, abilities and the potential of candidates. Age should not affect the selection.

• Make sure that interviewers are trained about the need to ask job-related questions and not base their decisions on prejudices and stereotypes. Ensure that managers document their reasons for selection to rebut any subsequent claims.

• Interviewers should use consistent techniques throughout the organisation.

• Record assessments of candidates against agreed selection conditions.

• Use – where possible – a mixed age interviewing panel.

Promotion

• Make sure that all promotions can be backed up by objective and measurable criteria so that employees believe the process is honest and fair.

• Communicate your promotion policy to all employees and managers.

• Like the recruitment process, the employer should focus on the skills, abilities and potential of candidates when sifting applications.

Training and development

• Agree a policy which allows employees of all ages to access training and development opportunities and develop their potential.

• Take account of the different ways that people learn, such as formal and informal training.

• Evaluate training and development with feedback from employees to make sure they benefit as much as possible.

Redundancy

• Many redundancy schemes still retain length of service as a criterion when selecting employees for redundancy, i.e. last in first out. This obviously favours longer serving employees who may be older but may also fall foul of other discrimination legislation on the grounds of sex, assuming that male employees serve longer than female employees due to career breaks.

• Employers should ensure that all redundancy procedures are based on business needs rather than age and that employees and their representatives are involved in planning for redundancies.

• Consider asking for volunteers, part-time working, secondments, job sharing or retraining as alternatives.

Retirement

• Agree a fair and consistent retirement policy with employees and communicate it.

• Set up mentoring schemes where older employees coach younger employees so that key skills and knowledge are not lost.

• Consider flexible or extended retirement options such as part-time working, job sharing, downshifting, sabbaticals, secondment and volunteering.

• Offer employees support before they retire (counselling and workshops).

• Offer retired employees the option of being invited back as casual workers.