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Tuesday 27 September 2016
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Will new age discrimination laws get the better of you?

Human Resources

Patricia Gray
Patricia is a management adviser, trainer and facilitator in general practice. She is a Fellow of the Chartered Institute of Personnel and Development and was a practice manager/partner for 11 years

Patricia is currently running workshops in age discrimination for practice managers all over the country. For further information, contact Patricia:

T  01279 777371
patricia@kingscote.freeserve.co.uk

Age discrimination legislation has been brought about primarily because of economic necessity. Quite simply, people in the UK are living longer, and the birth rate is dropping.

State funding for the swelling number of those no longer working needs to be paid for from the taxes of a declining workforce of younger workers. In 2005, the employment rate of 55–64-year-olds was 57% in the UK. However, of the 2.7 million people in this age group not working, it is estimated that at least a quarter would like to do so. In other words, there are potentially half a million people who would like to be in work if they could find suitable employment.

Many people think the legislation is just about protecting the rights of older workers, but it is actually about protecting all workers – young and old – from any harassment, victimisation or detriment, either directly or indirectly, which might be based on their age. This leaves it open for anyone at any age to consider that they have been unfairly treated and claim that detrimental decisions were made due to their age. That is all straightforward enough, but it is the implications of this legislation that might catch the unwitting employer out.

Age is just a number!
It may be difficult for employers to defend actions where they are treating different groups of employees in different ways or perhaps singling out individuals for different treatment. The employer may claim that the question of age did not come into the decision-making process, but, in fact, actions may be hard to substantiate unless the employer has concrete proof. The employer cannot even hide behind the excuse that they did not know the person's age, as treating individuals differently on the basis of assumed age will be deemed unfair.

Coupled with all this is establishing what is "young" and what is "old", because naturally these mean different things to different people. There is no clear definition of these concepts.

The legislation provides a skeleton for employers, but the interpretation of it will be formulated by the employment tribunals, which will no doubt put flesh to the bones.

Fortunately, ACAS (Advisory, Conciliation and Arbitration Service) gives us good guidance and provides useful packs for employers and employees (see Resources).

Employers will have to review all their employment policies to ensure that they comply with the new legislation and are advised to have equality and antiharassment policies that cover age. However, it is no good just doing this without providing a campaign of awareness and training to staff who are equally responsible for their behaviour at work.

No more happy birthdays?
Many HR managers in large organisations are so concerned about being vicariously liable for potential acts of harassment that they have banned sending birthday cards to employees or condoning "big" birthday celebrations. Political correctness gone mad? Well maybe, but perhaps every manager should be absolutely sure of what their employee actually wants, rather than making assumptions.

Now that the discussion is on the table, examples have been cited of staff members who have been horrified by a surprise "big birthday" celebration, preferring instead to slip into a new decade in obscurity!

Age discrimination legislation has been in force in Ireland for several years, and most of the claims have come from recruitment and selection. Managers will now need to review the requirements for jobs, advertising, application forms and interviews to ensure that they do not use ageist comments or criteria. Terms such as "young and dynamic" or "mature" should be avoided in advertisements. It doesn't just stop there.

There has been much debate about whether employers can continue to use criteria relating to experience or qualifications. This is because experience tends to infer a length of time, which might be discriminatory to younger workers, and specific qualifications may discriminate against younger or older workers, as the requested qualifications may not have applied during their education. It is best to avoid using the concept of experience and focus on skills and competencies instead. If qualifications are deemed necessary to perform the job, ensure it is clear that alternatives are acceptable.

Pay and other benefits have also come under the spotlight. The legislation accepts that increasing pay or benefits over time rewards loyalty and encourages staff to work with an organisation, but only for five years – after that, increases in pay and benefits become potentially discriminatory, because younger workers may not have been able to work long enough with the organisation.

Five-year cut-off
Many practices follow the old Whitley Council pay or the new Agenda for Change pay and conditions, with incremental salary scales and holiday entitlements, which increase after five years. It will not be sufficient for the practice to claim they merely shadow the NHS reward scheme. Each employer is responsible for his/her own decisions. Practices should consider what the best option is for the future. The safest is to ensure that there is a five-year cut-off for any increases. However, if the practice wants to provide increases after five years, they are advised to collect evidence to illustrate how increasing benefits rewards loyalty.

This evidence might include staff attitude surveys, data to prove low turnover, or other monitoring information. It is, of course, quite unlikely that any employee would make a claim if they are happy in their job. Typically, the employee who makes a claim for discrimination is the one who leaves with a grudge and perhaps takes advice from an employment law solicitor.
 
At the time of a claim, it may be difficult for the employer to make a defence against it if they have not already done some groundwork.

Retirement
Another big impact of the legislation is in respect of termination of the contract by the employer for retirement, which becomes the sixth fair reason for an employer ending the employment contract. This is a potential minefield, as the upper age for claiming unfair dismissal has been removed, making it possible for anyone over the age of 65 years to make a claim.

It will be virtually impossible for an employer to have a retirement age less than 65, and indeed if the employer does not state a normal retirement age in the contract there will be a default age of 65. This default will be reviewed in 2011 and may be increased to age 70 if the legislation does not provide the desired outcome of encouraging employees to remain in employment longer.

There is now a new procedure that every employer must follow when they wish to retire an employee. This involves notifying the employee in writing 6–12 months before the intended retirement date and informing the employee of their right to request to continue working. If the employee wishes to make a request, they should do so 3–6 months before the intended retirement date (there are shortened time limits during the transitional period until the end of March 2007). A meeting is then held between the employer and employee, who can be accompanied by a work colleague, to discuss the request.

If the request is turned down, the employee has the right of appeal, involving another meeting between the employer and employee.

Consider all requests
Employers have a duty to consider any request made but they are under no obligation to comply and do not have to provide any reasoning – although ACAS advises it is good practice to do so. If the employer fails to follow the new procedure to the letter, the employee could claim unfair dismissal, which would be considered by a tribunal to be automatically unfair.

Practices will have to consider how they deal with retirements in the future, and the potential outcome of agreeing to some employees continuing to work while disallowing others. Might those who are required to leave at retirement age claim discrimination if others are allowed to work longer? Or might they claim the dismissal was really linked to a performance or capability issue instead?

Many speculate that the pitfalls for the employer of the new legislation may have the opposite effect to that desired, and that employers will choose to play safe and retire everyone at their normal retirement age.

Partners are also covered by the new legislation, with the exception of the retirement provisions. This could lead to one partner making a claim of discrimination against the others. Even though partners are free to choose their own retirement age, it remains to be seen whether this could be challenged by an outgoing partner who wants to stay working longer. Partners are advised to seek advice on the implications from the practice solicitors.

Resources
ACAS
ACAS advises that all employers should be trained in the new legislation. ACAS has published a number of leaflets and guides. The employer's guide Age and the Workplace provides useful advice, as well as sample letters, to put the new regulations into practice. Further details can be obtained from www.acas.org.uk or from the ACAS helpline on 08457 474747

Department of Trade and Industry
www.dti.gov.uk

Age Positive
www.agepositive.gov.uk

Trades Union Congress
www.tuc.org.uk