By Stephen Jackson, employment law partner at Harding Evans Solicitors

Gentle jibes about age have been part of workplace banter for as long as anyone can remember. For example the 50th birthday card containing light-hearted taunts from colleagues about Viagra and hair dye, is as much part of office culture as gossip around the water cooler.

But from 1st October such rituals may acquire more sinister undertones as new age discrimination laws kick in and careless talk could start costing companies large amounts of money. In Ireland where such laws have been in force for six years, about 20% of all employment tribunals now involve a claim of unfairness in respect of age. That’s only marginally less than gender-related cases, which account for 24%.

Facing the prospect of unlimited compensation payouts, UK employers could be forgiven for worrying whether it will be possible to protect themselves against ageism claims. After all, these could arise from simple comments that most people in the workforce still regard as fairly harmless – terms such as “wet behind the ears,” or “over the hill.”

In effect will employers become sitting ducks just waiting for one of their staff or managers to say the wrong thing to the wrong person? Most sane employers these days will stay well on top of deliberate racist bullying in the workplace and will certainly keep their antennae up for careless use of racist or blatantly sexist terminology.

And in issues of race and gender, human resource managers are likely to be well practiced at avoiding behaviour which could be perceived as discriminatory.

But what about ageism? It could relate to virtually anyone on the payroll or in the job applications tray. Moreover it could rear its head at any stage in the employment lifecycle – recruitment, promotion, redundancy or retirement.

The first thing to remember is that, if there is evidence pointing towards age discrimination in a workplace, the burden is upon the employer to prove it hasn’t taken place. So if you can’t eradicate ageist terminology among staff or management overnight, then make absolutely sure you can demonstrate that such words do not reflect the way your firm makes decisions on appointments, promotions, training, redundancy or anything of that nature.

Clearly the use of obviously ageist words such as “young and lively” or “steady and mature” in job adverts is asking for trouble and should be avoided. But there is a multitude of other phrases which could be interpreted as favouring people of a certain age. For example an advert might say a company is looking for someone “dynamic,” or, alternatively, someone who has “plenty of experience.”

Companies using these phrases will argue that they are trying to convey the type of personality they were looking for and that such words are “ageless”. After all, Rolling Stone Sir Mick Jagger, aged 63, is the very epitome of dynamism, as many witnessed first hand at Cardiff’s Millennium Stadium recently.

If firms feel they must use such words in adverts they need to show convincingly that no reasonable person would have been discouraged from applying on account of their age. This might be achieved by publishing an accompanying photo which depicts people covering a wide age range.

They should also make sure they create documentary evidence showing that anyone who did apply for the post, received full and fair consideration. Using uniform lists of questions and an objective scoring system for the interview panel is one way to provide the evidence needed to defend a claim of unfairness.

It may be that a person of certain age is more likely to fit the bill for a particular job – for example if the job requires knowledge of modern music for a record shop or a high level of fitness for a lifeguard at a swimming pool. However that certainly doesn’t constitute a get-out clause. Firms would need to be able to prove that, in their decision making, it was the subject knowledge or the health and fitness of the candidates which was considered and not their age.

It may be legally acceptable to decide against appointing someone because they might not fit in with the rest of the team. But the requirement to ‘fit in’ can hide a multitude of discriminatory sins. If the candidate was 50 plus and the rest of the team were all twenty-somethings with a hectic nightlife, the employers may find themselves in some difficulty.

It would certainly be unlawful to reject an otherwise suitable candidate of a certain age simply because customers would prefer someone older or younger. Pandering to someone else’s prejudice is no defence in law.

Clearly recruitment is only part of the equation. Careless words spoken to those already in the workforce may become a minefield for employers. Perhaps a group of friends laughing together good naturedly over the ‘Viagra birthday card’, might not constitute an offence under the new laws, if clearly no offence was taken. However, if the line-manager joined in the ‘harmless’ banter and then a few weeks later was involved in rejecting the individual concerned for promotion, there could well be the basis for a claim of age discrimination.

Such scenarios underline the need to exercise the same thoroughness and scrupulous record keeping in making internal appointments and promotions as with external recruitment.

You may find it difficult to purge the workplace of age-related banter but when you make decisions on things like promotion or redundancy be sure your paperwork shows clearly why you chose the people you did. If you can’t produce the evidence, a tribunal is unlikely to give you the benefit of the doubt.

Beware of using phraseology which may come back to haunt you. For example if you consistently refer to some long-serving members of staff as the ‘old faithfuls,’ you might see yourself as commenting positively on their experience and loyalty. But if you subsequently needed to make some of them redundant, your words may be used against you at a tribunal.

As with anything else your decisions on redundancy need to be backed up with rigorous paperwork proving complete even-handedness.

Without inducing paranoia or excessive political correctness I would suggest employers try as far as possible to avoid and discourage phrases which could be interpreted as ageist. But more important than that they need to show complete transparency in all company systems for dealing with staff.

Just how these new regulations are ultimately applied in the workplace is something that will probably be tested in the courts in due course. But which way it plays out in the end, employers would do well to watch their language – both verbal and written. And if they can’t axe the banter then at least keep the official paperwork in order.