Getting to grips with the incoming age regulations is likely to give employers a headache, but they are going to present particular difficulties for those in the construction industry
The new age regulations become law on 1 October, prohibiting age discrimination in all aspects of the employment relationship, from recruitment, promotion and training, to dismissal.
The regulations will cover everyone from school leavers to workers at retirement age. They also extend to include all employees, job applicants, contract workers, agency workers and partners, and look set to present a particular challenge to the construction industry, where, according to a recent Department for Work and Pensions survey, awareness is low.
With no upper limit on the compensation payouts tribunals can award in age discrimination cases, many in the construction industry could pay a heavy price if they fail to get to grips with the regulations.
The DWP survey revealed conflicting attitudes to employing older workers across the industry, with 34% of managers believing age affects a person’s suitability for certain jobs. It also identified a reluctance to recruit workers aged more then 50, although the industry is more willing than others to employ workers above normal retirement age.
Managers will fall foul of the regulations if they give preference to younger workers on the assumption that they are better suited to physically demanding work, or if they favour older workers for managerial posts because they are seen as having the necessary authority.
The basic message is that employers must not make assumptions about someone’s ability to do a job based on age. The regulations will require a fundamental change in people’s mindsets.
Managers recruiting staff will have to draft job adverts carefully. The DWP found that two thirds of construction employers use length of experience as a selection criterion, but, refusing employment on the grounds of too few years’ work experience is likely to be judged indirect discrimination against younger applicants. Similarly, adverts for “young, dynamic workers” will be off the agenda. Instead of specifying years of experience when recruiting, employers should specify which experience or qualifications are required for the role.
Benefit packages such as extra holiday linked to length of service are likely to be discriminatory
Employers will also need to review all employment practices and policies. For instance, benefit packages that include elements such as extra holiday linked to length of service are likely to be discriminatory because younger workers are less likely to have been in a job as long as their older colleagues.
Exemptions do exist for service-related benefits based on service not exceeding five years. In other cases, service-related benefits may be permitted where the additional benefit can be shown to fulfil a business need (such as encouraging loyalty), but employers will need to back this up with evidence.
Employers may find that changes need to be made to employees’ terms and conditions to comply with the new legislation. This process can take time, particularly if the changes are likely to be controversial, so this will need to be factored in to the planning.
Similarly, employers will need to review retirement ages and retirement policies to comply with the new laws. From 1 October, employers will need to justify a retirement age below 65 and, even when retiring an employee at 65 or older, they will need to follow a set procedure that allows the employee to request continued working.
The regulations also call on employers to take steps to prevent the age-related harassment of employees. This is a potential minefield. When deciding if harassment has taken place, the focus is on whether the “victim” was offended rather than whether the “harasser” intended to offend and it is likely that age-related comments could lead to tribunal claims for which the employer is liable.
The age regulations present numerous pitfalls for the unwary. Employers in the construction industry should review employment practices at the earliest opportunity and inform and train their staff accordingly.
Richard Yeomans is a partner at Addleshaw Goddard