New legislation intended to outlaw discrimination in the workplace on grounds of age has now been in place since October and all employers should be aware of its implications. The Bridge looked at some of the likely effects of the legislation last summer but it is timely to remind employers of its importance.
The Employment Equality (Age) Regulations 2006 protect employees, job applicants and others from discrimination during recruitment and over terms and conditions, promotion, training and dismissal. The regulations make it unlawful to discriminate directly or indirectly or to harass or victimise employees on grounds of age.
Under the regulations, an employer would be guilty of direct discrimination if he treated one employee (or applicant) less favourably than another because of age and could not show there were sound and proportionate business reasons for doing so. Business owners and managers should be particularly careful when advertising jobs and when putting together application forms for new jobs or training opportunities.
All mention of age should be avoided and it may even be wise to avoid terms that could be perceived as age-related like ‘dynamic’ or ‘experienced’. Indirect discrimination can actually be harder for a reputable employer to avoid as it is often unwitting. It may occur, for instance, where a rule or practice applied across all ages can be seen to put people in a certain age group at a disadvantage. A requirement for a certain number of years’ experience in a job advertisement may, for instance, be found to discriminate against younger workers.
Of course, an employer may be able to show that a rule or provision that appears to disadvantage younger or older workers is justified but our strong advice would be to ensure that you have clear evidence that that is the case! Harassment occurs when someone is subjected to unwanted conduct that has the purpose or effect of violating their dignity or that creates an intimidating, hostile, degrading, humiliating or offensive environment. An objective test is applied to prevent abuse of the regulations by oversensitive employees. However, the perception of the "victim" is very much taken into account so employers would be well advised to update their existing equal opportunities policies.
Remember that employers are held responsible for the conduct of their staff while at work, whether or not they are aware of any misbehaviour. Managers and employees should be made aware of new policies and should be given training on the relevant issues. An employer who can prove that he took reasonable steps to prevent an employee from committing a discriminatory act has a defence against a discrimination claim.
Some forms of age discrimination are allowed under the new regulations, including national minimum wage payments, enhanced redundancy payments and life assurance cover for retired workers. Benefits based on length of service are also allowed but there must be some justification for service-based benefits that require more than five years’ service. Employers can also force workers over 65 to retire but they must consider requests to stay beyond retirement and follow the procedures correctly. Importantly, there is now no upper age limit for bringing unfair dismissal claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
