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No more Viagra jokes!

20 November 2006

It is now unlawful to discriminate against a worker on the grounds of their age. The Employment Equality (Age Discrimination) Regulations 2006 became law in October 2006, affecting and protecting not just older workers, but younger ones as well.

All the evidence suggests that small businesses have failed to prepare for the new regime: earlier this year, The Forum of Private Business even accused small firms of “sleep walking into a legal minefield”. It is essential that employers are aware of the new legislation and bring policies, terms and conditions and benefits into line to ensure that there is no discrimination or harassment on the grounds of age. Employment law specialist William Morse puts some of the key changes into a nutshell.

Tackling prejudices

The law forces employers to confront a range of age-related prejudices: younger people ‘lack the authority to deal with our clients’; a middle-aged woman will ‘never fit into our youthful atmosphere’; older men are ‘more likely to be off work ill’. Whether these preconceptions are valid is legally irrelevant. The law now requires that each person should be treated as an individual, not assumed to be like other members of the group who may or may not share such characteristics.

Harassment

Employers need to have policies in place prohibiting ageist bullying and offensive jokes about age. Belittling remarks that someone is too young to be able to do their job or birthday cards suggesting that the recipient has reached an age where they are over the hill could amount to harassment. The problem for employers is that while some employees might take this as amusing office banter, others might find it degrading or humiliating, especially if it was repeated after it became clear that it was unwelcome.

Recruitment

You cannot now recruit and select an employee on the basis of age, unless it can be objectively justified. As far as requesting dates of birth on application forms is concerned, employers need to consider the extent to which they can sensibly justify asking applicants to provide this information given that age must not be taken into account in selection.

In most cases, recruitment advertisements will be directly discriminatory if they refer to age as a requirement for the job unless the decision to refer to age is justifiable. For example, an ad for ‘a young, dynamic individual’ is likely to be discriminatory. Depending upon how the advertisement is drafted it could also be indirectly discriminatory.

During employment

Terms and conditions should be reviewed to make sure there is no discrimination during the employment itself. There is an important distinction however between age discrimination and other forms of direct discrimination (eg sex and race discrimination) and that is that employers may discriminate on the grounds of age providing they can show that it is objectively justified.

Service-related pay and benefits should also be scrutinised: length of service is often used as a criterion for pay and benefits such as additional holiday entitlement. This could be indirectly discriminatory as older employees are more likely to receive such benefits. Again, in some circumstances employers are able to justify enhanced benefits, linked for example to length of service.

Redundancy

Employers should tread carefully with redundancy selection schemes where the criterion is based wholly or partly on length of service. These may now be discriminatory.

Retirement

The upper age limit of 65 for unfair dismissal has been scrapped. This means that over 65s who are dismissed for reasons other than retirement now have the right to claim unfair dismissal. If the reason for dismissal is retirement, the employer must follow a complicated procedure of notification and meetings, within a set timescale, otherwise the dismissal could become automatically unfair.

Costly

There is no upper limit on compensation, so getting age discrimination wrong could be expensive. Most highly-paid senior executives in their 40s and 50s who are dismissed for age-related reasons will find it difficult to obtain comparable jobs. Employers could find themselves liable for huge compensation awards covering many years of lost income resulting from the discrimination.

Disablity discrimination laws

Bear in mind also the impact of disability discrimination legislation as older employees may be entitled to adjustments to their working practices to take account of disability. It is estimated that around 47% of over-55s have a disability and the proportion is likely to increase.

Employers have learned to their cost how long it takes to change sexist and racist cultures in the workplace. Sensible employers will have robust measures in place now that time has run out on ageism.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Matthew Clayton MA LLM (Cantab), CIPP/E
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