Legislation to outlaw age discrimination arrived with quite a fanfare in October 2006, but one year on, a number of HR professionals believe the new laws have done little to change attitudes towards age. Owen Warnock, employment law partner at Eversheds, looks at how employers and employees have fared in the new legal landscape.

The most recent employment tribunal statistics have revealed the first flurry of age discrimination since the legislation was introduced. Up to April, only 972 tribunal cases had been started and it is believed about another 1,000 have been lodged since then. We know from our clients that there are many other grievances under way and a fair preparation of these will filter through as tribunal claims.

According to new research conducted by Eversheds, which surveyed HR professionals across a range of sectors, 14 per cent of respondents said they have already received an age-related grievance and one-fifth of those has, to date, led to a tribunal case. These statistics suggest that the laws have done very little to change stereotypical attitudes towards age, with employers continuing with working practices that make them vulnerable to claims from disgruntled staff.

Most employers appear to be deliberately continuing with some practices that are now ‘debateable’. This is often a sensible choice because policies can be defended on the basis that they are ‘objectively justified’.

However the evidence we have seen suggests, first of all, that a number of employers are maintaining practices which stand little chance of surviving tribunal scrutiny.

Secondly, even in those cases where the policy may well be ‘justifiable’, elementary preparatory steps have not been taken – a logical written rationale has not been prepared. A formal justification will be much more persuasive than something that appears to have been ‘cobbled together’ only after an employee has complained.

Grey areas

When the legislation first came into force last year, Evershed’s research identified that employers were concerned by a number of grey areas in the regulations. With the Heyday and Palacios cases, which challenge the legality of enforced retirement at 65 and the rules on direct age discrimination, still outstanding, this lack of clarity in the regulations continues – particularly for public sector employers. European jurisprudence normally regards all public sector employers as already bound by the true intent of the directive, even if the UK regulations are wrong, so this could leave public sector employers facing thousands of backdated claims for age discrimination.

The European Court’s judgment on the Palacios case is scheduled to be issued on 16 October and this will probably settle the compulsory retirement question. Even so, employers in the public sector still face many more months of uncertainty until there is a ruling on the Heyday case.

For now, the only totally safe, albeit unrealistic, course of action for a public sector employer is not to require any employee to retire unless he or she wants to and to eliminate any direct age rules unless they are expressly permitted by the regulations (for example on pensions and redundancy payments).

Despite this gloomy outlook, the survey shows many businesses do seem to be taking a relatively bold approach to the retirement process, with 30 per cent of respondents now stating that they have no fixed retirement age. Among those organisations that have retained a fixed normal retirement age, there has been an increase in the proportion of employers whose policy is normally to accept requests to work beyond that age. Indeed the survey revealed that two-thirds of respondents had received at least one request to work beyond retirement age and, out of a total of 246 workers, only 19 were refused.

Looking ahead, we anticipate an upturn in the number of tribunal claims on this year’s figures as grievances work their way through the system. In particular, the most contentious issues sparking claims, according to Evershed’s research, are retirement and redundancy, with more than a quarter of employers (28 per cent) categorising their organisation at a high risk of claim. With the current wobble in the City markets and uncertainty over the legality of the UK’s retirement procedure, we would expect this trend to continue.

For businesses, there is a limit to the extent to which they can stamp out discriminatory behaviour amongst staff and, arguably, age discrimination is perhaps the most difficult as some of the stereotypes about older and younger people are true for many in each age group.

However, this isn’t an excuse for employers to bury their heads in the sand – quite the contrary. Those employers who proactively demonstrate that they are adhering to regulations will find they have a much stronger case if they find themselves in the unenviable position of facing a tribunal.

Owen Warnock is employment law partner at international law firm Eversheds.