Legislation prohibits workplace discrimination against someone on the grounds of age. All employees and workers are protected, including partners of firms, contract workers and people in vocational training, no matter how old (or young) they are.
The law applies to all areas of employment, including: recruitment; terms and conditions; pay and benefits; work status; training and promotion opportunities; redundancy; and dismissal.
Despite this, recent research indicates that age discrimination is still rife in the workplace and UK businesses are failing to take it seriously. Some employers continue to have stereotypical views of older and younger workers; older workers being seen as having wide experience, being loyal, having better time keeping and being interested in having a work-life balance, while younger workers were seen as open to new ideas and ambitious but inexperienced and not likely to stay in the job long. In some cases it may be that the introduction of legislation has not changed attitudes and biases, but simply driven them underground.
Without doubt, the most common potential age discrimination issues occur at either end of the employment spectrum – recruitment and retirement.
In respect of recruitment, care should be taken to ensure that job advertisements do not imply that a person of a particular age should not apply for the job (unless that job has a Genuine Occupational Requirement). Language and images with age connotations should be avoided as should age related criteria. For example, requiring a job applicant to have 10 years work experience may, unless objectively justified, amount to unlawful indirect age discrimination against younger applicants. Careful consideration should be given to job descriptions and selection criteria. It may be advisable to replace length of experience criteria with a requirement for proven skills in that area. Where specific qualifications are required these should not disadvantage people of a particular age compared with people of other ages (for example a requirement for GCSEs should be broadened to include equivalent qualifications that may be held by different age groups such as ‘O’ Levels). Interviewers should, wherever possible, avoid asking questions relating directly or indirectly to age during the interview. Interviewers should also try to avoid stereotypes based on the applicant’s age (or apparent age).
When the age discrimination legislation was introduced in 2006, the provisions allowed a default retirement age (DRA) of 65 and a statutory retirement procedure which gave employers a relatively easy dismissal method that was based purely on procedure. Once employees were approaching the age of 65, their employer could give them notice of their intended retirement date. As long as the retirement date fell after on or after the employee’s 65th birthday, and the statutory procedure was followed to the letter, there could be no challenge by the employee that the dismissal was unfair. The employee could request to continue working past their intended retirement date but the employer could simply choose to deny this request without giving any reasons.
However, after a Government review of the utilisation of the DRA and the statutory retirement procedure, the decision was taken to remove them and transitional arrangements were put into place in April this year to implement the phase out.
For the time being, retirement dismissals started in advance of the phase out are still capable of being deemed a fair dismissal. However, employers are losing a significant ability to plan and develop their workforces. Retirement ages are still permitted, however, these must pass the test of objective justification. This has already proven to be a difficult test to pass.
The spotlight will now fall on capability procedures because this will be the most common method of managing older employees out of the workplace. However, older employees must not be treated any differently to younger employees in this respect so the same procedure must be used when necessary regardless of age.