A legal guide to age discrimination in the workplace
The law is vital to combat widespread age discrimination in the workplace – especially against the older workforce. In a survey undertaken before the legislation came into force, 90% of older people said that they believed that employers discriminated against them because of their age. It will also tackle the increasing shortage of skilled workers and the UK’s ageing population.
The law is similar to other anti-discriminatory employment law in that it is unlawful for an employer to discriminate against a worker on the grounds of his/her age in the:
- Arrangements made for offering a job to a candidate
- Terms and conditions of employment
- Access to training and promotion
The Way Forward For Employers
Employers have to think about their attitude to age, e.g. whether the business tends to employ, train, and promote people in certain age groups, or likes to ease older employees out. They should consider the following:-
- Audit the age profile of the organisation to identify any age bias
- Conduct a staff attitude survey about age in the workplace
- Consider flexible working for all employees – allowing older workers to downshift towards the end of their working life
- Review current employment practices, such as:-
Evaluate the way staff are recruited – ensure that employees are recruited on the basis of their skills and abilities, not their age.
A job advert should describe the position on offer and request the skills and abilities that are sought.
- Avoid giving age limits or age ranges
- Avoid age restrictions such as “young graduates”, “mature person”, or stating “according to age and experience”
- Ask for relevant experience, skills and abilities rather than insisting on certain qualifications, e.g ‘0’ Levels
Application forms should focus on skills and abilities and avoid asking for an applicant’s date of birth.
Questions should be asked that will reveal the qualities, experience, and skills relevant to the job and business. It is essential to apply the same procedure to every candidate. A list of concise questions should be prepared in advance which are relevant to the job in question.
Evaluate criteria for promotion, which should be based on abilities rather than age.
Training and Development
Research shows that employers tend to stop training older employees. Businesses are realising that to maintain a competitive edge in the market place, it is essential to have a multi-skilled workforce. This gives flexibility to both the employer and employee, and encourages staff to accept change and adapt to new practices or techniques. It is important to regularly review the training needs of employees at all stages of their careers, and to discuss regularly with them their career aspirations, as this will not only demonstrate awareness of the needs of employees of all ages but may also assist in time to come if retirement is being considered (see below).
Review redundancy policies – it is no longer acceptable to use age as a criteria for selecting people for redundancy. When proposing compulsory redundancies, consider asking for volunteers first and consider flexible working or retraining.
Retirement – No Longer Lawful
The Employment Equality (Age) Regulations introduced for the first time a national default retirement age (DRA) of 65 and with it the right to lawfully retire employees over 65 without justification as long as the retirement followed the statutory procedures set out in the Regulations. However, with effect from 5th April 2011 the national default retirement age was abolished. Employers who had not issued notices of retirement and begun the statutory procedure before this date were unable to retire their employees without objectively justifying the dismissal and they can no longer dismiss for retirement unless they can justify the decision.
Because the Age Regulations abolished the upper age limit for claiming unfair dismissal, the abolition of the right to retire employees brings with it the very real risk of claims of unfair dismissal if employers retire staff without being able to objectively justify the decision.
If there is a contractual retirement age already, employers will need to consider whether they want to retain it or abandon it altogether.
Where they want to keep it, they will have to be able to justify their reasons for having such an age. In the absence of a contractual retirement age, employers will have to show that a dismissal of an older worker is fair for one of the potentially fair reasons (capability, misconduct, redundancy or some other substantial reason, e.g. a business reorganisation). The employer must also follow a fair procedure before dismissing.
If a fixed retirement age is to be retained, the employer will have to demonstrate that a legitimate business aim is being met, and that it is proportionate to use the retirement age as a means of meeting that aim. The courts have agreed that the following can be legitimate aims in connection with retirement:
- Workforce planning
- Facilitating the recruitment and retention of younger employees
- Contributing to a pleasant workplace and protecting the dignity of the older workforce by not requiring them to undergo performance management procedures
- Avoiding adverse impact on pension and benefits
- Ensuring a high quality of service or ensuring continued competence
- Having an age-balanced workforce
None of these, individually or collectively, gives a guarantee that the courts will uphold compulsory retirement. They will carefully scrutinise the employer’s justification and will also focus on the discriminatory impact on the employee.
If an employer could have taken alternative action to achieve the aim in question, the court may well find the retirement age is discriminatory.
This is now an area fraught with difficulties and employers considering retiring employees need to take immediate legal advice.
Performance and Competence Issues
With any type of work, there is always the danger that an employee’s stamina, interest, or motivation may deteriorate which may give rise to performance and competence issues. In some cases, this may be related to a person’s age in which case an employee’s work may have to be reviewed regularly and new targets set as appropriate. It may be that expectations will need to be reviewed as an employee gets older. Employers should consider ensuring that, at all stages of an employee’s career, their competency and progress is noted in regular appraisals. In this way if, as an employee gets older, there is deterioration in their skills and performance, it is not discriminatory to note it in appraisals if this has been done as a matter of course throughout the employment.
It is likely that occupational health support will become more essential as the workforce gets older, particularly where stress affects workability.