An age old problem is solved

By Sadiq Vohra

 

Age can be a double edged sword in employment. If you’re young then you can be classed as ‘not experienced enough’ and if you are 40 plus then many employers can deem you to be ‘over the hill’. These are some of the reasons why the Government has introduced new age discrimination rules which come into force in October 2006.
MWR’s partner and head of employment law, Sadiq Vohra, writes a final update on the new rules.

In February 2006, the DTI published the final version of the Age Discrimination Regulations. Ageist treatment in the workplace is rife, much of it unconscious or unintentional.  To avoid discrimination, employers must make major changes in mindset, and review all their workplace practices and policies.

The regulations on age discrimination apply to all employers, private and public sector vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes. In this context, an employer is anyone who has employees or who enters into a contract with a person for them to do work. The regulations cover recruitment, terms and conditions, promotions, transfers, dismissals and training.

For employees, the new rules are good news as from October 1 2006 it will be unlawful on the grounds of age to:

  • discriminate directly against you – that is, to treat you less favorably than others because of your age – unless objectively justified;
  • discriminate indirectly against you – that is, to apply a criterion, provision or practice which disadvantages your particular age unless it can be objectively justified;
  • subject you to harassment. Harassment is unwanted conduct that violates your dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for you having regard to all the circumstances including your perception of the issue;
  • victimise you because you have made or intend to make a complaint or allegation or have given or intend to give evidence in relation to a complaint of discrimination on grounds of age;
  • discriminate against you, in certain circumstances, after the working relationship has ended.

This is a valuable example highlighted by ACAS:

Example: Whilst being interviewed, a job applicant says that she took her professional qualification 30 years ago. Although she has all the skills and competences required of the job holder, the organisation decides not to offer her the job because of her age. This is direct discrimination.
Note: A job applicant can make a claim to an employment tribunal, it is not necessary for them to have been employed by the organisation to make a claim of discrimination.

The Regulations will also:

- remove the upper age limit for unfair dismissal and redundancy rights, giving older workers the same rights to claim unfair dismissal or receive a redundancy payment as younger workers, unless there is a genuine retirement

- allow pay and non-pay benefits to continue which depend on length of service requirements of 5 years or less or which recognise and reward loyalty and experience and motivate staff

- remove the age limits for Statutory Sick Pay, Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay, so that the legislation for all four statutory payments applies in exactly the same way to all

- remove the lower and upper age limits in the statutory redundancy scheme, but leave the current age-banded system in place.

- provide exemptions for many age-based rules in occupational pension schemes
The impact of the age regulations on employers, and on business generally, will be huge. Over one-third of the workforce is already aged 45 or over, and this will rise to 40 per cent by 2010. The introduction of anti-age discrimination legislation in the US resulted in a 40 per cent increase in claims, with age discrimination cases increasing at a quicker rate than any other form of discrimination claim. In Ireland, age is now the basis of 19 per cent of all employment cases.     

The financial penalty for non-compliance of employment law is huge and this is the latest area which businesses need to get to grips with. Businesses who believe they only have to make minor changes to their existing day-to-day employment practices to take account of the new requirements are sorely mistaken.