Are You Breaking The Law Without Even Realising It?

Adrian Fryer, Partner and Head of Employment Law at Lees Lloyd Whitley, gives his advice on how not to get caught out with the new age discrimination legislation.

In a world where teenagers are dot com millionaires, and people in their 60ís and 70ís cannot afford to retire - is age really such a crucial statistic in employment anymore? The governmentís new age discrimination legislation is coming into force in October 2006 and this will see a personís age being treated in a similar way to their race or sex. Employers need to take notice of the changes, as they could be breaking the law without even realising.

The change in legislation will specifically prohibit discrimination and harassment on the grounds of age of employment and training. What was once thought of as ëoffice banterí could now be classed as discrimination. For example when sending a colleague a birthday card referring to how old they are, and that they are ëover the hillí could be seen in the same way as if a female employee received a card detailing how she should be at home doing housework.

Employers will now be requested to demonstrate a ìproportionate means of achieving a legitimate aimî, for example when rewarding employees for a particular length of service, granting sabbaticals after a number of years, or paying bonuses based on length of service.

Employers need to be particularly careful in the wording of their recruitment adverts, as it will be unlawful for the employer to discriminate on a personís age for recruitment purposes. Even to the extent that the terms being used, such as ëyoung and energeticí and ëmatureí will no longer be allowed, and requiring a specific number of years experience from applicants needs to be treated with care, and, again, can only be considered lawful if it is a ìproportionate means of achieving a legitimate aimî The types of personal information requested in application forms may now be open to scrutiny and ACAS have suggested that the practice of asking for an applicantís date of birth may also fall foul of the law. Employers would also be well advised to use a panel of mixed aged assessors for recruiting and promoting individuals.

Some observers feel that the new rules may be something of a ëdouble-edged swordí for employees- new employees will benefit by the removal of age considerations in job applications, but some feel that existing employees may lose out on loyalty benefits when companies become aware that such benefits will be unlawful unless they can be objectively justified.

With regards to retirement age, under the new regulations all employees will be subject to a ëdefaultí retirement age of 65 and if employers want to impose a retirement age less than this, they will again have to show that it is objectively justified. Furthermore, employees now have the right to request to work beyond their retirement age, and the employer needs to give the request due consideration. If it is to be rejected - the employer must ensure that retirement is the ërealí reason; otherwise an Employment Tribunal claim could be raised.

There have been a number of examples in recent years of new pieces of employment legislation that have been preceded by some serious scare mongering in the press but, when they have come into effect, the actual ramifications on employers have been less severe than many people predicted. However, we can safely predict with the Age Discrimination Regulations, that, whichever way they are interpreted, they will have a significant impact upon employment relationships in the future and all employers would be wise to start looking at their policies and procedures at an early stage to make sure that they are ready to deal with the new law when it comes into effect in October.