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Age Discrimination Review

Written by: Sarah Duchart

Article Overview: A generalised review of the new Age Discrimination Regulations and what they mean for employers.

Age Discrimination Review

AGE DISCRIMINATION
Probably the largest single piece of employment legislation to be implemented since the 70s is the introduction of Age Discrimination in October 2006. Employers are mainly aware of the pending legislation, but have not yet addressed its impact on the business.

The impact on small, medium and large organisations will be huge as it affects all aspects of human resource management. The primary functions of human resource management to be affected by this legislation are;

• Recruitment and selection
• Performance and capability
• Training and development
• Promotions
• Redundancy selection
• Remuneration and reward
• Retirement

There will be specific types of reason where discrimination in terms of age will be legally acceptable and justifiable, but these are very few and far between. In the main, all businesses with employees will have to observe and act in accordance with the new legislation.

Recruitment and selection
When advertising for new members of staff, it will no longer be possible to say “would suit 20-30 year old” as this will directly discriminate against those who are not in this age bracket. Also, it will no longer be lawful to state number of years experience of more than the minimum required to carry out the job, so employers must be absolutely sure that the role requires the experience they determine, as age discrimination applies to both younger and older employees. Similarly, asking for a qualification such as 'media studies' may exclude older workers as this is a fairly new qualification.

Performance and capability
Employers must be confident that their performance and capability procedures allow for learning retention, dexterity and agility, and general speed of working when setting objectives for their staff. Blanket expectations across the business may discriminate in terms of age for younger or older employees. Therefore, current procedures should be reviewed so as to allow for targets and objectives to be used that consider the individuals capability.

Training and development
Employers will need to carefully consider who they offer training and development to. For example, when putting in a new IT system, they should not overlook re-training an older person because of benefit v cost may be less than re-training a younger person. Nor should they overlook re-training a younger person because they believe they can pick it up easier than an older person (who receives training).

Promotions
When promoting staff, consideration must be given equally between younger and older employees. As with recruitment and selection, the employer must be very accurate in determining the amount of experience required to carry out the role. Length of service should not be used to measure loyalty to the organisation, as an employee with one year’s service may have just as much loyalty as an employee with seven year’s service.


Redundancy selection
The upper age limit for claiming unfair dismissal due to redundancy is likely to be removed. Therefore, including age within the redundancy selection criteria will be unlawful.
People at different ages currently receive different rates of compensation. This may change to allow everyone to get the same. As yet, there is no decision as to what this rate will be.

Remuneration and Reward
Salary increases must not be related to age or number of years service, unless the employer can justify a benefit to the business for doing so, as this will be direct age discrimination. Similarly, increased holiday entitlement may have to be withdrawn if additional days continue to be accumulated following 5 years service. Long service awards, used primarily to recognise loyalty, and promote motivation will need to be reviewed and justified as a recognised benefit to the business, or withdrawn. However, it will be possible to put other schemes in place to recognise outstanding achievements, and to motivate all staff, whatever their age.

Retirement
A default retirement age of 65 years will be set. In general, retirement ages set below the default retirement age will be unlawful, although there are some exceptions. The employer will also be obliged to help the employee plan their retirement, by writing to them at least 6 months before their expected retirement date, offering a staged withdrawal from the business, and considering requests from employees to stay on past their retirement age.

Penalties
All employees will be eligible to bring a claim of age discrimination and/or unfair dismissal to an employment tribunal if relevant, regardless of whether they have reached the default retirement age or not. Compensation awards are likely to be in line with other discrimination associated claims, i.e. uncapped! As with other forms of discrimination, the burden of proof at a tribunal, that a business has not discriminated against an employee on grounds of age, lies with the employer.


HR Response
www.hrresponse.co.uk
0870 7878416


This is a fact sheet only and must not be used as a full policy. It is always advisable to get independent advice before implementing policies and procedures as all businesses are unique.

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