Age discrimination
The problem You post the following recruitment advertisement: "… seeking young, enthusiastic, front-of-house staff; experience of working in a lively and energetic bar environment required." After 2006 will such recruitment advertisements be acceptable?
The Law
Age discrimination legislation is due to come into effect in 2006, and the outcome of the first significant case to deal with age-related discrimination, Rutherford v Secretary of State for Trade and Industry, has been eagerly awaited.
Currently, legislation effectively prevents employees over the age of 65 from bringing claims for unfair dismissal or for redundancy payments where their employer fails to choose, or have as a policy, a normal retirement age. The Court of Appeal in the Rutherford case held that the upper age limit of 65 for unfair dismissal and redundancy payments is not discriminatory.
However, employers should watch this space, as the applicants in Rutherford have sought leave to appeal to the House of Lords.
Expert advice
With the appeal to the House of Lords in the Rutherford case, and age discrimination legislation due to come into effect, employers must start preparing today for age discrimination laws. The coming legislation will mean that employees over 65 will be able to bring unfair dismissal claims and redundancy payment claims.
In addition, it is important to remember that the age legislation will apply equally to younger workers, and will affect aspects of the employment process including compensation and benefits. The new laws will have an enormous effect on recruitment, selection and promotion processes, and all decisions will need to be taken against clear and transparent criteria.
Putting procedures in place will not simply be a case of removing "date of birth" from application forms. There are less obvious aspects, such as using experience as a selection criterion in recruitment practices. Indeed, asking for "young" applicants would not be advisable after 2006, as it would discriminate against older workers.
In terms of "experience", employers must be exceptionally careful to ensure that the criterion does not unfairly discriminate against any age bracket.
Age discrimination is a potential minefield for employers. It is estimated that the introduction of age discrimination laws could cost employers £193m in litigation costs in the first year of implementation alone.
Employers need to be aware of this and to start planning to avoid the potential pitfalls. If the process of training and cultural change is addressed before the legislation comes into force, employers will be in a good position to face the age-neutral world of 2006.
Check list
- Check recruitment procedures - ensure that advertisements do not refer to age or request "young, dynamic" employees.
- Are mature graduates able to apply for graduate programmes, or are there strict age limits for this?
- Ensure that salary and benefits are not age-related and that employees across the board would equally benefit from the remuneration packages available.
- Ensure that any redundancy procedures undertaken are not based on age as a criterion.
- Is there a contractual retirement age? If there is, it is important that there are objective reasons for having such an age criterion and that it applies across the board.
- It is likely that pensions and life assurance will fall outside the scope of the age discrimination legislation, but details of such exclusion are not available at this time.
Beware!
Awards for successful discrimination claims are unlimited, and can run into millions of pounds. Therefore, with discrimination claims on the increase (from 2002-03 to 2003-04 the number of sex discrimination claims increased by 76%), it is essential that employers do not fall foul of age discrimination legislation.
Contacts
Janvi Patel and Anna Humphrey
Charles Russell leisure and hospitality group
020 7203 5000
www.charlesrussell.co.uk
DTI age discrimination regulations
www.dti.gov.uk/er/
