Prudent employers will be reviewing their procedures after the government announced a series of measures to tackle age discrimination in the workplace
In July the government published draft regulations aimed at tackling age discrimination in the workplace. The regulations will come into force on 1 October 2006 and will have a significant impact on construction firms’ recruitment and employment policies.
The regulations will apply to all workers and to all job applicants. They will give individuals the right not to be discriminated against on the grounds of age. The regulations aim to protect younger and older workers. The regulations will prohibit direct and indirect age discrimination, harassment and victimisation on age grounds.
Direct discrimination is defined as when an employer treats a worker less favourably, on the grounds of age, than others in a comparable situation, and there is no objective justification for doing so. An example would be where an employer refuses to recruit workers over 40.
Indirect discrimination is where an apparently neutral provision puts people of a certain age group at a particular disadvantage. An example of this might be where an employer insists on applicants for a job having five years’ experience. This is a neutral provision but one that puts at a disadvantage workers not old enough to have obtained five years’ work experience. The provision would be discriminatory unless the employer can objectively justify it.
Employers will be able to justify different treatment on the grounds of age only if they can show that the differing treatment fulfils a legitimate aim and the particular circumstances make it appropriate and necessary. In practice, justifying age discrimination, particularly direct discrimination, will be difficult.
It would be prudent for employers to start reviewing employment policies and recruitment procedures now, rather than after the implementation of the regulations when they may already be exposed to litigation. The following are examples of areas where changes are likely to be needed:
- Recruitment: it will generally be unlawful for job advertisements to refer to age limits. Terminology such as “young” and “mature” should be avoided. Minimum or maximum age limits for will generally be unlawful. Application forms should not include a request for an applicant’s date of birth. Personnel directors should ensure that anyone involved in recruitment has received training on the firm’s obligations under the legislation. Decisions about recruitment, selection and promotion should not be based on age, but on the skills required.
- Training: any training run by employers should be equally accessible to workers of all ages.
- Salary and benefits: employment contracts, staff handbooks and employment benefits should all be checked and employers should remove all provisions that are discriminatory. A major issue will be any benefits that are related to length of service. Employers will need to identify these and establish whether specific exemptions laid down in the regulations apply. Otherwise, benefits linked to length of service may constitute indirect discrimination. In a redundancy situation, selecting employees for redundancy on the basis of “last in, first out” may also be discriminatory as this is likely to result in the dismissal of a greater number of younger employees.
- Victimisation and harassment: employers should emphasise to all employees, particularly managers, that this behaviour will not be tolerated. Employers should amend staff handbooks and provide training for managers on identifying and dealing with this behaviour.
- Retirement: under the regulations, there will be a default retirement age of 65 and compulsory retirement ages below 65 will generally be unlawful. Employers that have a compulsory retirement age below 65 will either need to change the age or justify it. Employers will also be obliged to inform employees of their intended retirement date and that they have the right to request to work beyond that age. Employers will have a duty to consider seriously, within a specific timeframe, any request from an employee to work beyond his or her compulsory retirement age. However, this does not amount to an obligation to employ workers beyond the age of 65. The draft regulations, which are now open to consultation until 17 October, will become law if approved by parliament.
Tom Potbury is an associate in the employment group at law firm Pinsent Masons