Age Discrimination – why is it so important to comply with the Law?

Firstly, here are some statistics from employment law solicitors Richard Nelson which may surprise you:

• People over 60 now outnumber children under 16 for the first time ever.

• By 2040 the number of people over 64 will grow from 9.5m to 15m.

• The working population in 1999 was 47.8%. In 2030 it will fall to 44.5% leaving a shortfall of 2m workers.   

Many small businesses get caught out with age discrimination because employers sometimes make assumptions about people based on their age, quite often completely subconsciously.
The Employment Equality (Age) Regulations 2006 provide protection against age discrimination in employment for people of all ages, include all areas of employment and apply to all employers. So what are the important points for employers?

The regulations identify two types of discrimination: direct and indirect.  Both are unlawful, and can result in large tribunal awards, but what do these two types of discrimination involve?

Direct discrimination is where, on the grounds of age, an employer treats an employee less favourably than he treats other people (real or hypothetical) who are in a similar situation. For example, the clerks at a barrister’s chamber decided not to put forward a barrister for a specific case because the barrister lacked sufficient experience.  The legitimate aim of seeking to ensure that the client interests are properly served and the barrister practice develops in accordance with his or her abilities will probably justify the disadvantage which the “experience” criteria places the younger members of the chambers. However this “less favourable” treatment would be lawful if the treatment is a proportionate means of achieving a legitimate business aim.  Being too expensive would not be justification, whereas health, welfare and safety of the individual could possibly be an acceptable reason.

Indirect discrimination is where an employer uses a provision, criterion or practice which discriminates indirectly.  For example, a requirement that an employee must have a particular length of service or experience in an area before they can have a job or access to a particular benefit could indirectly discriminate on the grounds of age.  If you use length of service or requirement for experience you must be prepared to justify the reason why.

A tricky area for many employers is the default retirement age of 65.  Employees have the right to request to work beyond that age and employers have a duty to consider such requests.  A compulsory retirement age is not required by law and having one could mean you lose skilled people.  Loosing talented people just because they have reached a certain age could actually affect the productivity of your business so it may actually be worth considering flexible retirement which can include reduced hours, part-time working or job-sharing.

Employers must also be careful to ensure there are no hidden age barriers in selection and promotion processes.  Another danger area is redundancy where procedures should be based on business needs rather than age.  

However, it is worth remembering that many assumptions about people’s abilities based on age are out-of-date and incorrect. For example, older workers are often assumed incorrectly to be slow to learn new skills or incapable of adapting to new technology. Improvements in healthcare mean that people are now active and fit for longer, and many wish to continue working past retirement age. This can benefit businesses by widening the recruitment and employment pool. Likewise, many younger workers are unfairly considered to be unreliable or unprofessional.