|
|
|
|
Age Discrimination
Under EU directive (2000/78/EC) which is also known as the "Employment Directive", the UK is required to end most workplace discrimination on the grounds of age by 1st October 2006. The potential impact of this directive on UK businesses is truly staggering. The Employers´ Forum on Age (EFA) has warned UK employers that they could be exposing themselves to a colossal £73 billion worth of claims if they fail to ensure that their employment practices are compliant with the new legislation.
Although the directive will only be implemented in 2006 the government has announced it intends to introduce the required regulations by 2004. It is perhaps just as well that the government is allowing employers this breathing space. The changes which most employers will need to introduce to their practices and procedures ahead of 2006 will require a complete overhaul of attitudes and commercial approach to ensure compliance with the new legislation. |
Who will be protected?
The following include some of the people who are likely to be protected by the new legislation:
- People who are applying for work
- People who are working, whether they are directly employed, or working under another type of contract, such as agency workers and some self-employed people
- People undertaking or applying for employment-related training
|
How will the Employment Directive affect employers?
The new legislation is expected to make it unlawful (subject to a limited number of exceptions) for employers to either directly or indirectly discriminate against people on the grounds of age in recruitment, promotion, terms of employment and dismissal. Examples of acts which may fall foul of the new legislation might include the following:
- Placing recruitment advertisements which specifically exclude people from applying on the basis of a minimum or maximum age limit (subject to certain exceptions)
- Placing recruitment ads which stipulate for example "The atmosphere in the office, although demanding, is lively, relaxed and young" or "Mature candidate wanted"
- Requiring applicants to have a set number of years work experience
- Requiring applicants to state their date of birth on job application forms
- Depriving older people of training opportunities offered to younger members of staff
- Permitting employees in the workplace to make ageist remarks/jokes
- Linking benefit entitlement such as holiday or sickness pay rights to length of service (although the government has indicated such policies may be permissible provided they are implemented to 'encourage and reward loyalty')
- Dismissing people on the basis that they have reached a mandatory retirement age
In short, any requirement or policy introduced by employers which disproportionately disadvantages younger or older workers may amount to indirect discrimination under the legislation. The only way an employer is likely to be able to avoid falling foul of the regulations would be if they are able to show that the measure falls within one of a number of limited exceptions or it can be objectively justified. |
What are the potential implications?
It would appear that there is a very real risk that the new legislation will herald a new wave of discrimination claims being lodged against employers. The proposed legislation has been described as the most significant since the Sex Discrimination Act was introduced over 25 years ago.
Arguably the most controversial issue will be whether the new legislation continues to allow mandatory retirement ages. The government has indicated in its recent consultation document 'Equality and Diversity: Age Matters' that it is considering allowing the continuation of a mandatory retirement age (albeit one which is raised to the age of 70). Should the government choose to raise the mandatory retirement age to 70 or alternatively scrap it altogether (as in Australia and the USA) then this could have significant cost consequences for employers.
The continuation of contractual benefits for employees who are aged 65 + may for instance involve employers having to pay increased premiums in respect of car and health insurance. In some cases it might not be possible for employers to obtain insurance cover for older members of staff. Depending on the terms of the contract in question the employer may well be liable to pay such employees extremely generous sick pay provisions whilst he or she is absent from work.
The new legislation might also result in more complex claims being brought against employers because age and disability discrimination will inevitably become joint issues as health risks increase. This in turn might make it more difficult for employers to deal with tribunal complaints in-house and may lead to increased legal and expert costs being incurred. |
What can I do to ensure my procedures are compliant with the Employment Directive?
Although the legislation will not take effect until 2006 employers should:
- Consider carrying out an audit to see whether there is any bias towards one particular age group, if there is, consider introducing measures which might encourage greater age diversity
- Avoid using job advertisements which exclude people from applying on the grounds of age or experience (unless this can be objectively justified)
- Consider extending sex and race discrimination policies to cover age discrimination
- Ensure adequate records are kept which demonstrate decisions to recruit, promote or dismiss employees have been based on performance rather than age related matters
N.B. Notwithstanding that the above legislation is not set to come into effect until 2004 in the recent case of Rutherford v Harvest Town Circles Ltd and Bentley v DTI (2002) the tribunal ruled that the present statutory exclusion of employees over the age of 65 from being able to bring claims for unfair dismissal and redundancy must be disapplied as it conflicts with sex discrimination legislation. As a result the validity of the exclusion is by no means certain and pending the outcome of the appeal by the DTI employers should be wary about dismissing employees just because they have reached retirement age.
If you would like any more information about this, or related employment matters, please do not hesitate to contact Adrian Berkeley at Berkeley Solicitors, 100-102 Market Street, Droylsden, Manchester M43 6DE. Telephone - 0161 371 0011
August 2003 |
|
|
|
|
|
|
|
|
|
|
| Return
to Employers Main Page |
|
|
|
|
|
