On 1st October 2006 the Employment Equality (Age) Regulations 2006 came into force, making discrimination on the grounds of age unlawful.
These new Regulations impact all businesses and the scope of the Regulations cover the entire life of the employment relationship – from recruitment, terms of employment, promotion & training, termination and references. In this article we briefly discuss some of the key areas that employers should be aware of.
The Regulations cover the following types of discrimination:
Direct discrimination
Indirect discrimination
Harassment and
Victimisation
These are discussed below.
In addition this article looks at the scope of the Regulations and gives examples. We also outline the new retirement procedure that organisations should be considering for any employee who will be retiring.
DEFINITIONS
Direct Discrimination
This is where a decision is made because of a person's age (or perceived age). Direct discrimination does not need to be intentional.
Example: Whilst being interviewed, a job applicant says that she took her professional qualifications 30 years ago. Although she has all the skills and competences required of the job holder, the organisation decides not to offer her the job because of her age.
NOTE: A job applicant can make a claim to an employment tribunal, it is not necessary for them to have been employed by the organisation to make a claim of discrimination.
Indirect Discrimination
This is where an employer applies a provision, criterion or practice which disadvantages people of certain ages.
Example: an employer requires applicants to have at least 10 years experience.
Harassment
This is unwanted conduct which has the purpose or effect of violating a person’s dignity, creating an intimidating, hostile, humiliating or offensive environment.
Employers will be responsible for ageist harassment by their staff in the course of employment unless they can show that they took reasonable steps to prevent it.
Example: A young employee is continually told he is ‘wet behind the ears’ and ‘straight out of the pram’ which he finds humiliating and distressing.
Example: An employee has a father working in the same workplace. People in the workplace often tell jokes about ‘old fogies’ and tease the employee about teaching ‘old dogs new tricks’. This may be harassment on the grounds of age, even though it is not the victim’s own age that is the subject of the teasing.
Victimisation
Anyone who makes a complaint of age discrimination or assists someone in a complaint is protected from being treated unfavourably. It is also important to note that they do not just cover older people – but prohibit age discrimination against both young and old employees.
Example: An employee claims discrimination against their employer on the grounds of age. A work colleague gives evidence on their behalf at the employment tribunal. When the work colleague applied for promotion her application is rejected even through she is able to show she has all the necessary skills and experience. Her manager maintains she is a “troublemaker” because she had given evidence at the tribunal and should not be promoted.
Action for Employers – What to do Now?
Organisations should therefore start by making all employees aware of age discrimination and provide training as to the type of behaviour and conduct that is not acceptable under the new legislation. Organisations should also ensure they update their current equal opportunities policy to include age discrimination.
You will also need to review your policies on:
Recruitment, selection and promotion
Training
Pay, benefits and other conditions
Bullying and harassment
Retirement
You should also ensure that all employees know about your equality policy and what is expected of them.
THE LEGISLATION IN MORE DETAILS & EXAMPLES
Recruitment
Recruitment decisions should be based on the skills required to do the job. You should provide training to help those making judgements to be objective and avoid stereotyping people because of their age.
Application Form
Remove age/date of birth from the main application form and include it in a diversity monitoring form to be retained by the HR. In addition, review your application form to ensure that you are not asking for unnecessary information about dates.
Job Description & Person Specification
Remove any references to age in both the job description and the person specification. For example, avoid asking for “xx years’ experience” as this may rule out younger people who have the skills required but have not had the opportunity to demonstrate them over an extended period. A job applicant could challenge any time requirement which you may then have to justify in objective terms.
Educational and vocational qualifications have changed and developed over the years (e.g., GCEs are now GCSEs). Make sure that the qualifications you specify are not disadvantaging people at different ages. If you are going to be specific about qualifications be sure you can justify their need in objective terms and make it clear you will consider equivalent or similar level alternative qualifications.
Advertising
Advertise in a way that will be accessible to a large audience and write your job advert using the information in the job description and person specification. Avoid using language that might imply that you would prefer someone of a certain age, e.g., “mature”, “young” or “energetic”.
Be clear about what skills you actually need for the post and recruit for these essential skills and aptitudes.
As well as considering the language you use in adverts, think also about the hidden messages that may be present in any promotional material or on your website, particularly any pictures.
Graduates
If you ask for graduates, remember that the term “graduate” can be interpreted as meaning someone in their early 20s. Make it clear you are interested in the qualification and not the age of the applicant.
You will also have to be careful about restricting your recruitment process to the university “milk rounds” as the majority of students who attend these events are young graduates.
Working With Employment Agencies
If you use a recruitment agency, you need to be sure the agency acts appropriately and in accordance with your company’s equal opportunities policy.
Training Opportunities for promotion and training should be made known to all employees and be available to everyone on a fair and equal basis. Job-related training or development opportunities should be available to all employees, regardless of age.
Performance Appraisal
Check any performance appraisal system you have to ensure that it is working fairly and without bias. A fair and transparent appraisal system will become increasingly important when the changes to the retirement age are introduced.
Redundancy Selection Check that your selection processes for redundancy are free of age discrimination. This means that practices such as “last in first out” (LIFO) are using length of service in any selection criteria are likely to be age discriminatory.
Bullying and Harassment In cases of harassment it is not the intention of the perpetrator which defines whether a particular type of conduct is harassment but the effect it has on the recipient. Harassment could take the form of:
Inappropriate comments – by suggesting someone is too old (“over the hill”) or too young (“wet behind the ears”).
Offensive jokes
Exclusion from informal groups such as social events
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 information meetings. George feels undervalued and disengaged by this unintended action.
Service Related Benefits Remuneration packages, particularly pay, often have elements which are related to length of service. These may well place younger workers at a disadvantage compared to older workers and could therefore amount to unlawful indirect discrimination unless employers are able to justify them in each case.
There is an automatic exemption for benefits based on up to five years service. An employer who awards a benefit falling within this exemption will not need to justify its policy, even if it is indirectly discriminatory.
RETIREMENT
The new Regulations set a retirement age of 65 years and retiring someone at this age will be both fair and justified age discrimination. There are however new procedures that have to be followed and employees have the right to request to stay on past the age of retirement. If the new procedures are not followed then employers could
face claims for unfair dismissal. The procedure (in brief) requires:
The employer to notify the employee in writing between 6-12 months before the retirement date and advise them of the right to request to stay on.
The employee to make a written request to stay on – at least 3 months before the retirement age.
The employer to arrange a meeting to discuss the request.
The employer to notify the employee in writing of the decision.
The employee to appeal if required.
RETIREMENT– Transitional arrangements applicable up to 1st April 2007
If an employ is due to retire shortly after 1st October, there are interim measures that need to be followed.
If the employee is given notice before 1st October that they are to be retired after 1st October 2006 but before 1st April 2007:
Notice must be at least the period required by the contract of employment;
or
Where the employee is already serving a long period of notice required by the contract that exceeds four weeks, the employer must give at least four weeks notice before the 1st October 2006 to ensure the employee is aware and given the statutory minimum period of notice for retirement.
On 1st October, or as soon as practicable afterwards, the employer must write to the employee telling them of their right to request working longer.
The employee can make such a request after their contract has been terminated but not more than four weeks afterwards.
A meeting to discuss the request, and any subsequent appeal meeting, must be held within a reasonable period. The employee can ask to be accompanied by a companion.
There are standard letters that can be used to communicate retirement to employees and these are available from Practical HR.
Organisations should now review all employees approaching retirement age to ensure the new procedures are followed. Failure to do so could lead to disputes and liability.
In Summary – Main Points
Include age in your Equal Opportunities policy and consider adding all forms of discrimination and harassment (sex, race, disability, gender reassignment, sexual orientation and religion or belief) to your disciplinary rules. These rules should also include bullying.
Make sure all employees are aware (through training, notice boards, circulars, etc) that it is not only unacceptable to discriminate, harass or victimize someone on the grounds of age, it is also unlawful. Make it clear that you will not tolerate such behaviour.
Ensure individuals know what to do if they believe they have been discriminated against or harassed, or if they believe someone else is being discriminated against or harassed. This should be included in the grievance procedure. You should ensure that those involved in recruitment and performance management know what to do.
Check your policies for retirement and redundancy. Upper age limits on unfair dismissal claims and redundancy payments will be removed. There will be a default retirement age of 65, making compulsory retirement below 65 unlawful unless objectively justified.
Complete the Age Action Plan (see below).
Benefits – Review your insured benefits and pension schemes to ensure they comply with the new laws and assess any increased costs of including older workers. Look at your Service Related Benefits – bearing in mind the 5 year exemption.
Age Action Plan - What to Do Now
Remove ageist language from job and promotion adverts and focus on the needs of the job. In the short-term make someone responsible for ‘vetting’ the wording. Look at where and how you advertise to ensure you reach the whole labour market.
Brief all employees on age awareness to focus on:
tackling deep seated stereotypes and
bullying and harassment.
In performance assessments challenge phrases that make assumptions about an individual and focus on actual performance
Review company literature for age bias, look to how your organisation might be perceived by younger or older employees.
Make your retirement policy well known and treat requests to stay after retirement as an opportunity to retain knowledge.
Age Monitoring
Monitoring the effect of the anti-age discrimination regulations can help you to:
identify any problems
gather evidence that might be needed by the courts for objective justification of any age discrimination
The following age bands might provide a useful starting point for gathering your information:
16-21, 22-30, 31-40, 41-50, 51-60, 60-65, 65+
Keep records on how all your employees fit into these age bands.
Remember to keep data (in line with the Data Protection Act).
This article has been supplied by Pratical HR
Practical HR has produced several documents relating to Age Discrimination. These include:
