Most employers are aware that new age discrimination rules come into effect this weekend, but how many know the wide reaching effects of the changes and how much work will be needed to satisfy the new rules? By Rebecca Benneyworth.

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The age discrimination legislation comes into force on 1 October, and effectively bans all forms of discrimination regarding age. Although it has been regarded as great news for older employees, who may not be discriminated against on grounds of age, the legislation also affects younger workers and many long established practices in business. Businesses will need to review not only their recruitment procedures, but consider carefully a wide range of employee issues in order to comply with the new law.

The new law affects all employers, irrespective of size, and covers discrimination through recruitment, terms and conditions of employment, promotion, transfers, dismissal and training. The regulations do not affect the provision of goods and services.

The legislation essentially makes it unlawful to:

discriminate directly against anyone – that is, to treat them less favourably than others because of their age – unless objectively justified;

discriminate indirectly against anyone – that is, to apply a criterion, provision or practice which disadvantages people of a particular age unless it can be objectively justified;

subject someone to harassment. Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them having regard to all the circumstances including the perception of the victim;

victimise someone because they have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on grounds of age;

discriminate against someone, in certain circumstances, after the working relationship has ended.

Upper age limits on unfair dismissal and redundancy will be removed. There will be a national default retirement age of 65, making compulsory retirement below 65 unlawful unless objectively justified. Employees will have the right to request to work beyond 65 or any other retirement age set by the company. The employer has a duty to consider such requests.

There are limited circumstances when discrimination may be lawful such as genuine occupational requirements, objective justifications, exceptions and exemptions.

Direct discrimination is less favourable treatment because of someone’s age. This includes discrimination in offering employment or dismissal. It also affects offers of promotion and selection for training, and the terms and conditions such as holiday entitlement. Employers must no longer ask for dates of birth on application forms, nor for dates of education.

Terms in recruitment advertising will need careful review so that no terms are used which directly or indirectly discriminate against younger or older workers. Job descriptions requesting a particular number of years experience in a role or function are also not permitted, as they indirectly discriminate against younger applicants. Employers must also consider whether they qualifications that they are requesting are appropriate as the nature of the qualification and its availability (either very recent or long ago) could also be discriminatory. Placing of advertisements should also be carefully considered, so that advertising jobs in a magazine which is aimed specifically at a particular age group could also be seen as discriminatory. Employers using employment agencies will also need to review the agency’s policies to ensure that it acts in accordance with the company’s equality and diversity policies.

It is not unlawful to discriminate on the grounds of age if:

there is an objective justification for treating people differently – for example, it might be necessary to fix a maximum age for the recruitment or promotion of employees (this maximum age might reflect the training requirements of the post or the need for a reasonable period of employment before retirement);

where a person is older than, or within six months of, the employer’s normal retirement age, or 65 if the employer doesn’t have one, there is a specific exemption allowing employers to refuse to recruit that person;

the discrimination is covered by one of the exceptions or exemptions given in the regulations – for example pay related to the National Minimum Wage;

there is a genuine occupational requirement that a person must be of a certain age – for example, if you are producing a play which has parts for older or younger characters.

Employers also may not be able to offer longer holiday entitlements to those with long service, as this discriminates indirectly against younger employees, who cannot serve longer through age. Long service awards may also become a thing of the past. Length of service benefits are dealt with by the legislation as follows :

Any benefit earned by five years service or less will be exempt. Employers may use pay scales that reflect growing experience or limit the provision of non-pay benefits to those who have served a qualifying period, subject to the five-year limit.

The use of length of service of more than five years for all types of employment benefits is lawful if:
awarding or increasing the benefit is meant to reflect a

higher level of experience of the employee, or to reward loyalty, or to increase or maintain the motivation of the employee;

the employer has reasonable grounds for concluding that using length of service in this way fulfils a business need of his undertaking.

However, in order to meet these requirements, employers would need to retain evidence from which they can conclude that there is a benefit to the organization from the policies adopted.

Finally employers must ensure that all employees are trained in the new rules, so that harassment is avoided. This includes the use of derogatory terms such as “old fogey”, and the exclusion of some employees from social events by selecting meeting places suitable only for young employees. The following example is taken from the ACAS guide for employers on the new regulations:

Example: George is in his 60s and works in an office with a team of younger colleagues in their 20s and 30s. The team, including the manager, often go out socialising. They do not ask George because they feel that he wouldn’t like the venues they choose for such events. However, George finds out that many workplace issues and problems are discussed and resolved during these informal meetings. George feels undervalued and disengaged by this unintended action. This is a form of harassment, even though unintended, as George is being excluded from the team. To prevent this, the manager ought to consider office-based meetings to consult more fully with all staff in decision-making to prevent George feeling excluded because of his age.

Food for thought indeed!

This topic is also covered in ‘Age Discrimination – A demographic time bomb’, an article published in Croner’s Employer’s Briefing 331 (pp 4-5) – available as a free download from sister site AccountingWEB’s document library.