Over the last twenty years or so, age discrimination in the workplace has been a maturing problem. The common perception is that age discrimination is an issue which disadvantages the older employee or applicant more than it does the younger one. Long gone are the days when age was automatically synonymous with experience, wisdom and aptitude in the workplace. The 1980s was the decade of thrusting young entrepreneurs and the start of the technological revolution. The hierarchical structure based on age and length of service which existed in most workplaces has been dismantled, and this has had an enormous impact on the working environment and opportunities for older employees.
However, it is not only older employees who are discriminated against because of their age. Younger employees also bear the brunt of certain discriminatory practices. For example, employers may think that a younger worker will be more reluctant to object to the employer insisting upon an opt-out of the working time regulations.
The European Union Employment Equality Directive stipulated that age discrimination legislation had to be implemented by Member States by 2006 at the latest. Age discrimination in employment and vocational training will become unlawful in the UK on 1 October 2006. Over the last few years, the Government has invited various consultations on the issue of age discrimination. Last year, the DTI published its report of the responses to their Towards Equality and Diversity paper. The responses revealed that 50% of those who replied had either suffered age discrimination at work or had witnessed someone else suffering it. The types of discriminatory behaviour cited by the respondents were:
• Being forced to retire after a certain age;
• Not being given a job they applied for;
• Being prevented from attending training courses;
• Being told their age was a barrier to general advancement;
• Assumptions being made about abilities due to age; and
• Being selected for redundancy due to age.
On 2 July 2003, the DTI published its consultation paper Equality and Diversity: Age Matters. In it the Government outlined its proposals to outlaw direct and indirect discrimination on the basis of age in employment and vocational training, but indicated that positive discrimination was not going to be a facet of the implementing legislation. From October 2006, decisions about selection, recruitment, promotion and training will need to be made not on the basis of the age of a person but on the basis of merit and competence.
Direct age discrimination is discrimination which is based on a person’s actual or perceived age, whereas indirect discrimination occurs when a workplace practice applies to all employees but disadvantages either younger or older people. In keeping with other legislation on discrimination, indirect age discrimination will be justifiable on objective grounds. These grounds include:
• Arrangements for retiring staff;
• The ability to determine pay and non-pay benefits on the basis of length of service or experience;
• Setting an upper age limit on recruitment based on the likely time an employee can serve before retirement.
For example, it may be possible for an employer to refuse to employ a 63 year old applicant for a job if the job requires a few years’ training, due to the need for there to be a reasonable period of employment before retirement in order to justify the cost of recruitment and the cost and length of training. However, it is important to remember that when justifying the different treatment (even on the above grounds), the employer needs to show there are exceptional circumstances which justify the different treatment.
Age discrimination has never captured the public imagination and grabbed the headlines like sex and race has in the past (thus far pensioners have not rioted in the streets of South London or chained themselves to railings outside the House of Commons). However, it is vital for the Government’s social political agenda that the legislation works, as the fact that people are living longer has meant, amongst other things, that the “grey vote” will become more and more important to attract in future years. There is likely to be many far-reaching ramifications of the legislation. For example, businesses will have to be more careful about how they advertise in the future, and steer clear of specifications such as “dynamic and energetic”. The impact on redundancy selection criteria is likely to be significant; for example, will the old “last in first out” criterion be acceptable in view of the fact that it is likely to disadvantage a greater proportion of younger employees than older employees? And how will the legislation affect benefits based on length of service?
Questions like these remain unclear, and demonstrate how the new legislation will pervade all aspects of business. The one thing that is clear is that the canny employer will start reviewing their practices now.