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Annie Hayes

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Age: The new discrimination

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Discrimination on the basis of how many or how few furrows you have on your brow will soon wind bosses up in the dock; Guy Guinan, employment partner at law firm Halliwells LLP offers a comprehensive checklist for nervous bosses that may want to scrub ‘young and energetic candidates needed’ from their recruitment adverts.


The Government has published its plans to make age discrimination unlawful by October 2006. The draft Employment Equality (Age) Regulations 2006 are currently subject to the consultation process which will result in a final version being implemented next year.

The new rules will involve a fundamental change in the way that age is currently used as a criterion in employment decisions. The rules will protect workers of all ages from discrimination based on age and will impact on almost all aspects of an organisation’s employment policies – from recruiting procedures, to pay and benefits whilst employed right through to retirement arrangements.

Taking this into account, it may not be surprising that in Eire where age discrimination legislation is already in place, it makes up almost one in five of all cases.

Comprehensive guidance is expected from ACAS before the new laws are implemented. However due to the extent of the changes many employers will want to start considering their own policies and procedures sooner.

Recruitment, selection and promotion
Clearly this will be one of the areas where the new rules will have the greatest impact. Employers will need to review the whole process from advertising to selection criteria to interview.

The wording used in any job adverts will have to be carefully considered. Terms previously used will have to be discarded. Some are obvious, the advert requiring “young and energetic candidates needed” will clearly not be acceptable. Neither will “junior office clerk”.

What about the advert that states 10 years experience required? Or that a certain number of qualifications are required? These types of specifications will rule out candidates from certain age groups and may be challenged. The key issue is whether the requirement of a certain level of experience or qualifications is justified for the particular job.

The first step to establish what specifications may be justified is to analyse the job specification and person specification. What responsibilities and day to day skills does the job genuinely require? Clearly identifying the key talents required for the job from the start will draw the focus away from issues such as age, experience or qualifications.

At the interview stage a mixed age interviewing panel should be used. It is important that they have been trained and are aware of the need to ask job related questions. The key task will be to show that they have been selected on merit.

Similarly it will be important to ensure decisions relating to promotion are seen to be taken on merit. All opportunities for promotion should be advertised through open competition.

Pay and benefits
Stipulating that an employee will be entitled to a certain benefit after a number of years service is common practice. However under the new Regulations this could be challenged as discriminatory.

If faced with a claim the employer may be able to show that the practice is justified. However as a result of feedback from previous consultation papers the Government has realised that many employers will withdraw the benefit completely or level it downwards rather than facing the risk of a challenge.

In order to avoid the new legislation reducing the level of benefits available to employees it has been decided to include a limited exemption for employment benefits. This provides that use of length of service for all types of benefits is lawful if:

  • Awarding or increasing the benefit is meant to reflect the higher level of experience of the employee, or to reward the loyalty of the employee, or to increase or maintain the motivation of the employee;

  • The employer has concluded that there will be a business benefit resulting from the higher level of experience of staff or from rewarding staff loyalty or increasing or maintaining staff motivation; and

  • The employer applies the length of service criterion similarly to staff in similar situations.

There are also two specific exemptions where the length of service requirement is up to five years or where the service requirement mirrors a similar requirement in a statutory benefit.

Outside of this exemption the employer will still have to show the policy is justified. For example if there is free private health insurance provided for those employees under 60 years of age this will have to be shown to be justified, i.e. it pursues a legitimate aim and it is an appropriate and necessary means of achieving that aim.

Retirement
This area has been the most controversial in the consultation stages of the new legislation. If age discrimination meant retirement ages were unlawful then anybody could bring a claim of unfair dismissal if retired. This would have caused considerable problems in workforce turnover and recruitment planning. However the widely expected prohibition of retirement ages is at present not proposed. The proposal under the draft legislation is to:

  • set a default retirement age of 65

  • create a right for employees to request working beyond a compulsory retirement age, which employers will have a duty to consider

  • closely monitor the appropriateness of keeping a retirement age, subjecting it to formal review five years from implementation

Employers that operate a policy whereby employees have to retire before the age of 65 will now have to either show objective justification for this or increase the compulsory retirement age. People will no longer be required to retire before 65 unless proper justification can be shown.

The duty of the employer to consider a request to work beyond retirement is subject to the same procedural rules that apply to requests for flexible working. The employer must inform the employee of the right to make the request and follow all the procedural steps if one is then made or the Tribunal may make an award of up to eight weeks pay.

Checklist

  • Review recruitment and promotion procedures, as these will be ‘popular’ areas for claims.

  • Ensure age related benefits are objectively justified or within the exemptions.

  • Pre-65 retirement will also have to be justified or the retirement age increased.

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Annie Hayes

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