After
much debate, legislation to tackle
Ageism in the workplace finally comes
into force from 1 October 2006 with
the launch of the Employment Equality
(Age) Regulations. In essence, it’ll
be unlawful to discriminate against
an employee or job applicant on the
grounds of age. This is a very far
reaching piece of legislation which
will impact on businesses of all kinds.
It will also be extremely important
for many individuals.
Although it has a tremendous significance
for those who are “in their
prime”, the legislation applies
to people of all ages and covers discrimination
on the grounds of youth as well as
old age.
If you’re in business
you’ll probably have received
information from government sources.
As an individual you’ll probably
have read articles in the newspaper.
Either way, the deadline is closing
in fast and there is much uncertainty
over the impact.
In this primer we’re highlighting
the main aspects of the legislation
and also the places to turn to for
further information. We are indebted
to and acknowledge these sources.
However, these themselves are only
guides. For definitive information
reference must be made to the legislation
itself. It’s probable that once
the regulations come into effect then
there’ll be many tests of the
implications through tribunals and
legal cases.
Sources of Information
If you’re in business
it’s likely you’ll have
received a booklet called “Be
Ready” from the Department for
Work and Pensions. This booklet and
associated information is produced
in conjunction with various government,
employer and union organisations under
the name of the “Age Partnership
Group”. For free information
in the form of a “Be Ready Organiser”
call 0845 715 2000 or email apg@trgeeuropeplc.com.
Within this overall framework, Acas,
Britain’s leading employment
relations organisation, has prepared
various guides which can be downloaded
for free from
www.acas.org.uk or are available
from the publications order line on
08702 429090. In particular, there
is a guide for employers “Age
and the Workplace: Putting the Employment
Equality (Age) Regulations into practice”
and for individuals “Advice
leaflet – Age and the workplace”.
There is also a Helpline on 08457
474747.
The Key Points
The following 10 key facts
have been published by the Department
of Works and Pensions.
1. Age legislation comes into force
on 1 October 2006.
2. Regulations cover employment and
vocational training. This includes
access to help and guidance, recruitment,
promotion, development, termination,
perks and pay.
3. The regulations cover people of
all ages, both old and young.
4. All employers, providers of vocational
training, trade unions, professional
associations, employer organisations
and trustees, and managers of occupational
pension schemes will have new obligations
to consider.
5. Goods, facilities and services
are not included in these regulations.
6. Upper age limits for unfair dismissal
and redundancy will be removed.
7. A national default retirement age
of 65 will be introduced making compulsory
retirement below age 65 unlawful (unless
objectively justified). This will
be reviewed in 2011.
8. All employees will have
the “right to request”
to work beyond the default retirement
age of 65 or any other retirement
age set by the company and all employers
will have a “duty to consider”
requests from employees to work beyond
65.
9. Occupational pensions are covered
by the regulations, as are employer
contributions to personal pensions.
However, the regulations, generally
allow pension schemes to work as they
do now. See regulations for more details.
10. The regulations do not affect
state pensions.
Implications
The detailed implications
will only emerge once the legislation
comes into force but it’s going
to permeate almost every aspect of
employment.
Acas has produced a checklist for
employers to get them thinking which
includes the following:
Recruitment advertising
Avoid specifying a minimum/maximum
length of experience as this disadvantages
certain age groups (also, asking for
“graduates” may discriminate
against older workers).
Advertise in a cross-section of media
so you get in touch with all age groups.
Application forms
Although it isn’t unlawful to
ask for date of birth on application
forms, we suggest you:
- only ask for a date of birth on
your monitoring form and ensure it
is not seen by those involved in the
selection process
- use skills/competence-based application
forms instead.
Selection procedures
Train managers to avoid stereotypes
– for example the assumption
that younger workers do not have the
skills for management or older workers
are just coasting towards retirement.
Monitor the results of your recruitment
and selection. Do you need to take
positive action to increase your selection
options to help recruit certain age
groups? For details visit the Department
of Trade and Industry website at www.dti.gov.uk/er/equality/age.
Training
Make sure training is available
to all – do not overlook an
older person for training thinking
they may not be interested in career
development.
Performance appraisal
Set the same standards of
performance regardless of the employee’s
age.
When writing appraisal reports avoid
comments like “does well despite
their age” or “shows remarkable
maturity for their age”.
Redundancy policy
Review your policies: use
of LIFO (last in, first out) or length
of service to select employees for
redundancy is likely to be discriminatory.
Equality policy
Add age to your equality
policy and talk to your employees
about how to tackle age discrimination.
Make sure your bullying and harassment
policies cover age.
Know your workforce
Think about who is likely
to retire and when (the government
plans to introduce a national default
retirement age of 65).
Consider flexible working for older
workers.
Its effect for individuals
There is obviously a great
deal of speculation and comment taking
place as to what the implications
of the new legislation will be and
also regarding the readiness of businesses
to deal with the new requirements.
The area is ripe for newspaper articles
and pub jokers identifying how the
new regulations will change things
that we have hitherto taken for granted.
However, until previous practices
are challenged and carefully reconsidered
it will not be possible to see just
how far-reaching the new legislation
is.
Already one local council is reviewing
its practice of giving long service
awards. Birthday cards with ageist
jokes may seem harmless to some but
may be offensive or humiliating to
others. Discount schemes for pensioners
may have to be looked at in a new
light.
For the moment at least, while matters
become clearer, a good place to start
if you believe you’ve got an
issue and want an objective understanding
is to refer to the Acas website and
move on from there.
Main points
Here we give some of the
main points.
The legislation is based
on similar principles to other discrimination
law in that it deals with direct discrimination,
indirect discrimination, harassment
and victimisation.
The regulations make it unlawful on
the grounds of age to:
· discriminate directly against
you – that is, to treat you
less favourably than others because
of your age – unless objectively
justified
· discriminate indirectly against
you – that is, apply a criterion,
provision or practice which disadvantages
your particular age unless it can
be objectively justified
· subject you to harassment.
Harassment is unwanted conduct that
violates your dignity or creates an
intimidating, hostile, degrading,
humiliating or offensive environment
for you having regard to all the circumstances
including your perception of the issue
· victimise you because you
have made or intend to make a complaint
or allegation or have given or intend
to give evidence in relation to a
complaint of discrimination on the
grounds of age
· discriminate against you,
in certain circumstances, after the
working relationship has ended.
What this might mean
Amongst other things, it
will be unlawful on the grounds of
age to:
1. decide not to employ you
2. dismiss you
3. refuse to provide you with training
4. deny you promotion
5. give you adverse terms and conditions
6. retire you before your usual retirement
age (if you have one) or retire you
before the default retirement age
of 65 without an objective justification.
There are limited circumstances
when it is lawful to treat people
differently because of their age.
To understand these, you should refer
to more detailed coverage of the subject
or obtain appropriate professional
advice.
There are also some transitional arrangements
which apply in the early stages of
the new era. These also can’t
be covered in detail here.
It’s apparent that, in all kinds
of ways, attitudes, actions and vocabulary
are going to have to change, whether
it’s in formal organisational
procedures and practices or whether
it’s in office banter. Job adverts,
selection procedures, performance
appraisals will all have to be carefully
scrutinised for offending words, phrases
and implications, for example:
“young”
“mature”
“junior”
“wet behind the ears”
“straight out of the pram”
“old dog new tricks”
“old fogies”
“10 years’ experience”
In conclusion
Where we are at the moment
is that the new regulations are here
and although some firms are ready
many, in particular smaller firms,
are not. They are either not sufficiently
aware of the urgency or of the impact,
or they see this as just another set
of regulations that have to be complied
with.
But compliance is a very negative
way to view the changes. The rules
apply to the young at least as much
as to older workers. What is being
advocated is that competence and ability
are the determinants of appropriate
employment, not age or experience
per se. This can only be good for
employers in the long run.
At present there is a severe skills
shortage in many areas and yet older
workers are finding it difficult to
obtain employment and “are put
out to grass” before they are
ready and while they are still capable
of working effectively. The challenge
is there, for employers and employees
alike, to find a way through.
More flexible and imaginative approaches
are required on all sides and areas
like continued development and training
and motivational tools should be seen
in a positive light whatever a person’s
age. A proper dialogue must take place
so that the transition from employment
to retirement is as mutually beneficial
and as seamless as possible.
Other useful publications
“The Impact of Age Regulations
on pension schemes”
www.dti.gov.uk/employment/discrimination/age-discrimination
“Removing Ageism – make
it your business”
www.agepositive.gov.uk
