The Employment Equality (Age) Regulations came into force on 1 October, 2006, providing protection from age-related discrimination in the workplace for employees and applicants alike. Now, the first Employment Tribunal case to reference the legislation has been heard and has seen a 67-year-old employee reinstated to her post.
Consequently, it is worth emp-loyers refreshing their memories of the basic requirements of the regulations, so as to avoid falling foul of the law themselves, particularly since recent surveys of workers and employers have produced some interesting results; one in 10 workers claimed to have experienced age discrimination, even since the introduction of the legislation and, in contrast, employers believed they were fairly or very well informed about the legislation, even though, in an ACAS survey of 750 small businesses, less than 30% of them then responded correctly to a question about whether it is still lawful to have a retirement age.
Some simple mistakes occur at the recruitment stage, where employers are often confused about whether they can specify how much experience they’re looking for.
There is nothing in the regulations that prohibits employers requiring certain experience. However, the pitfall to beware is that "time-linked" experience is likely to be indirectly discriminatory, since, generally, only applicants who have worked for the specified period will be able to apply. The effect of this is indirect discrimination, often towards younger applicants who may not have the experience specified because they had only just left school/college and are too young to have been able to work the required period.
Employers need to be able to justify the reason for the period of experience they have specified and should also be aware of "direct" age discrimination - such as specifying an age range for applicants - which is likewise unlawful unless it can be objectively justified.
The only exception to an employer refusing to employ someone on grounds of age is where a person is older than, or within six months of the employer’s normal retirement age - or 65 if the employer doesn’t have a normal retirement age - as the regulations provide an exemption for that category.
Another area of confusion concerns job advertisements and titles. Although many employers are now aware that words such as "youthful", "young", "mature" or "older" should not feature in adverts, only once Tribunals have considered more age-related cases will we have guidance on other words with possible ageist connotations, such as "dynamic", "responsible" or "ener-getic". In the meantime, it is sensible for employers to be mindful of the language they use in adverts and focus on the job itself.
There is no case law from the English Tribunals at present, but a recent Irish case, where age dis-crimination laws have been in force for some years, is relevant here. The complainant was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/renting/mortgaged accommodation", "number of children", "age" and "date of birth". He provided incorrect information, arguing that the questions were "irrelevant and invasive" and was not appointed to the post, despite being suitable. He was awarded E5,000, as it was held that he had been discriminated against on grounds of his age.
Since discrimination law enables an individual to bring a claim if they can demonstrate that their ’age’ may have had an impact, employers should avoid any practice where someone may ’infer’ that age was an issue, such as asking for date of birth or the sort of questions raised in the Irish case.
Once in a post, employees are in a better position to assess general treatment, so it’s important for employers to treat employees fairly and to be seen doing so, and to keep good records of all aspects of the employment relationship, from adverts to interview notes and from appointment letters and contracts, to termination documents.
This is particularly important where any potentially contentious matters arise, such as a disciplinary or a dismissal (including redundancy), as employees may allege that the basis for the action was the employer’s age discrimination against them. In such as case, for the employer to defend the claim, documents providing an "audit trail" of the reasons for any action or decisions taken will prove vital.
Employers should inform employees on how they will deal with unacceptable employee-to-employee behaviour since, even though any victimisation or harassment might be conducted by employees themselves, it’s usually the employer who is vicariously liable for their actions.
The regulations have introduced a national default retirement age of 65, which means employers can retire employees (or set retirement ages) at or above 65 and retirements or retirement ages below the default need to be able to satisfy the test of objective justification.
Irrespective of the age an employer sets, they will have to follow the ’Retirement Procedure’, the first stage of which is to notify the employee, at least six months in advance of the retirement date, of their right to request to continue working. If the employee makes such a request, they should then meet to discuss it, following which the employer should inform them of their decision, which the employee can appeal. n
=== Summary and tips for employers ===
1. Avoid using age in any aspect of an employment-related decision, wherever possible
2. Consider if age - or time-linked experience - really matters to the job in question
3. Confirm that reasoning is not based on assumptions about age or on preconceived ideas
4. Consider whether the same aim can be achieved in another way than by using age or time-linked experience
5. Imagine explaining why age or experience was relevant - having to objectively justify using such criteria - to help clarify, first, whether you need to include it and also what reasons would you give to justify inclusion
6. Remove age-related questions from person specifications, job adverts and application forms; they can be included on Equal Opportunities forms
7. Keep good records of interviews, offers made and rejections, training undertaken or declined, and promotions
8. Check whether service- related benefits that accrue with time are discriminatory
9. Ensure that redundancies are not made on the basis of age or length of service
10. Ensure managers are aware of the Retirement Procedure. l
Brigit Foster is an employment lawyer at Darbys LLP solicitors in Oxford