The Employment Equality (Age) Regulations 2006 come into force on 1^st October 2006. In this article, Stephen Jackson, Head of the Employment Law Department at leading law firm Harding Evans, explains the general principles of age discrimination and some of the practical implications of these new regulations.

The general principles

The general principle is that, from October 2006, to treat someone less favourably than others on account of their age will be unlawful discrimination. The exception, where age discrimination will be permitted, is where that treatment can be justified.

Age discrimination can occur in two forms - direct and indirect. Direct discrimination is where a person’s actual or perceived age is the reason for less favourable treatment (for example “people aged over 50 need not apply”). Indirect discrimination is harder to spot - it occurs where an apparently neutral provision or practice puts someone of a certain age group at a disadvantage (for example, a provision that “successful candidates will be required to pass a health and fitness test” has no direct reference to age but may tend to put older people at a disadvantage).

Justifying discrimination

Age discrimination can only be justified if the discrimination is “appropriate and necessary”. Here, “necessary” is the key word and should alert employers to the fact that the Government envisages that justification will usually be a difficult burden to overcome. In this regard, it may be easiest to look at age discrimination in the practical context.

Recruitment and promotion

Decisions on recruitment, selection and promotion which are based on age will be unlawful unless objectively justified. Almost all of those advertisements which today specify that applicants should be between certain ages will be as unlawful. Such advertisements are likely to become as rare and jarring as they would be today if specifying gender requirements.

For example, for a retailer to advertise for young sales assistants thinking this would be more likely to attract teenage buying customers, is unlikely to be capable of justification. This is precisely the sort of age discriminatory practice which the law is designed to eradicate.

Tribunals may also criticise employers who dare to use adjectives such as ‘dynamic’ or ‘energetic’ in their advertising text and images. In Ireland, where similar legislation is already in place, such words have been held to provide evidence of discrimination against older workers. It would appear that fear of litigation may soon dictate that for you to describe your staff as ‘energetic’ or ‘dynamic’ will become a dangerous complement to pay unless you can show that you apply such descriptions to workers of varying ages.

Employers must also be wary of minimum experience requirements. For example, you may have difficulty in justifying as necessary a requirement for “10 years experience” when a 27 year old has plenty of qualifications and several years experience of doing the job.

Pay and benefits

Many employers will have benefits related to minimum service, for example eligibility to join a pension scheme or increased holiday entitlements. Whilst minimum service requirements are likely to be indirectly discriminatory, the government has provided an exception where the service required is five years or less and the requirement is applied to staff in similar circumstances.

Where the service requirement is more than five years, employers will have to show that they reasonably concluded that there will be a business benefit in resulting higher levels of experience, staff loyalty or motivation.

Harassment

Employers are already sensitive to the fact that sexist, racist and homophobic jokes may give rise to consideration of disciplinary sanction and can also give rise to tribunal complaints. Ageist jokes will need to be viewed in a similar light.

Hopefully, we will not all lose our sense of humour regarding our advancing years. It may be a long time before the ‘happy birthday old fart’ card disappears from the newsagents’ shelves, but it may be seen less often in the workplace from October. Sometimes people can overstep the mark and be quite rude or patronising to others of a different age group. Employers and employees will need to be alert to the possible discrimination complaints that could be made if offence is taken.

Retirement and Unfair dismissal

It will remain possible to have a normal retirement age for your workforce, though this must be not less than 65 unless justified. Additionally, there will be a duty to consider requests to work beyond that age.

Those requests will have to be considered seriously. Although the right not to be unfairly dismissed (and also to receive a statutory redundancy payment) is currently restricted to those under 65, from October that upper age limit will be removed and those older employees will have the same rights as the younger employees.

At first glance, that may not concern you. However, it probably should. Where an older employee does not agree with or accept the given explanation for his or her dismissal in preference to a younger employee, the employee is likely to tag an allegation of discrimination onto an unfair dismissal complaint. For this reason, employers need to be ready to be able to justify, with reference to written records and objective facts, their selection methods and reasons for dismissal.

Conclusions

Whatever your views on the matter, all employers need to review their harassment and equal opportunities policies and training to ensure that ageism is properly addressed.

Further, you should not wait until October to review your internal and external communication materials including all advertisements. Claimant’s will point to today’s advertisements as evidence of an ageist attitude and practice. An Employment Tribunal will be sceptical of the employer who says that all discrimination stopped on the day that the new law came in.

This new law may be enough to make your hair turn grey. It will be interesting to look back in 20 years time to see just how sensitive we have become and how, with passing of time, this young law has matured.
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