Aged 45+? Age Discrimination and Diversity

Peter Murphy

Wise Owls Employment Agency Ltd

Introduction

October 2006 introduced Employment Equality (Age ) regulations into employment practice.

This means that it is now illegal to discriminate in the workplace on the grounds of age in the same way as you can’t discriminate on the grounds of race, ethnicity, gender, sexual orientation, religion or disability.

What it Means to You

Employers are not allowed to discriminate on the grounds of age ( young or old) against:

employees Workers (e.g. agency workers) job seekers trainees / work placement candidates

What it Means to You (2)

NB The regulations only apply to work and training – not other things such as insurance premiums, travel, car hire, health check-ups etc, voting, criminal law, admission to pubs etc.

Also, age discrimination is still not outlawed in the provision of goods and services, although it is expected that the government will introduce legislation sometime soon.

Benefits of Older Workers

Knowledge Experience of life and work Social and Life Skills Motivation Loyal – less likely to leave for another job Take less time off “sick” Will attract the “grey pound”.

Vodafone Survey July 2008

3,800 people were interviewed 70% of those over 50 feel fulfilled at work 50% of 25-31 year olds feel fulfilled at work 97% of those working beyond 65 feel “enabled” – more than any other

age group 61% of 31-35 year olds feel enabled at work The 30-somethings are the most negative: 58% feel undervalued, 49%

unfulfilled, 43% de-motivated Older workers report a “second burst” once they get past the pressures

of bringing up a young family. Younger workers tend to be very ambitious, and then face

disappointment as their hopes are not realised – this is getting worse Older workers have the most positive outlook.

Case Study – B&Q Macclesfield

Opened 1989 – staffed entirely by over 50sStatistics for this store compared to overall B&Q stores: Profits 18% higher Staff turnover 6 times lower 39% less short-term absenteeism 59% less “shrinkage” Customer perception of service improved Skills base of the workforce increased

Source: www.agepositive.co.uk (Case Studies)

Genuine Occupational Requirements

Objective justification – if the job genuinely requires a certain type of person then employers are allowed to specify this.

Good examples: woman for dealing with personal hygiene of elderly female patients; someone of a particular ethnic background for working with clients of a similar background

Bad examples: retailers, restaurants etc wanting young, attractive “dolly birds” and “hunks”.

Do these ads discriminate?

We require an enthusiastic person, flexible enough to fit in with our fast-moving market place, not afraid of challenging the status quo and in touch with latest thinking.

Our ideal candidate will need to manage competing demands. He or she should be reflective, and have boardroom presence and gravitas.

Examples from ACAS: “Age and the Workplace” 04/06

An Age-Positive Recruiter Will:

Use application forms instead of CVs Not ask your age on the application forms Ask about Age, ethnicity, etc on a separate

“monitoring sheet” Not use “ageist” language in advertisements Not apply criteria which seem fair, but actually

discriminate: eg “5 years experience required” for unskilled/low skilled jobs

Not use “slanted” words like “enthusiastic” “lively” “attractive”(!)

An Age-Positive Employer Will:

Monitor against age for recruitment, training, promotion, etc

Not discriminate directly or indirectly on grounds of age, and not allow other staff to do so

Not allow bullying/harassment on grounds of age Not use e.g. “long service awards” Notify you 6-12 months before you are due to retire Give you the chance to ask to work beyond

retirement age Consider requests for flexible working

An Age-Positive Employer Will: (2)

Not victimise someone for complaining / giving evidence re. age discrimination

Not discriminate against someone after working relationship has ended

Not allow employees to discriminate on the grounds of age

NB Upper age limits have been removed for unfair dismissal /redundancy

Limitations

There are limited lawful circumstances where it is possible to discriminate:

Genuine Occupational Requirements Applicants within 6 months of company’s retirement

age Exceptions/exemptions in legislation: e.g.. National

Minimum Wage Requirement of employer to be seen to be

responsive and reasonable

Retirement Age

National default retirement age – 65, thus unlawful to have compulsory retirement under 65 (unless objectively justified)

Employees right to request to work beyond 65 / other retirement age set by company – employers duty to consider request

Retirement: Definitions

Pension Age – age at which an employee can draw their pension; not always the same as the time when they can retire if they wish

Normal Retirement Age – The age at which the employer requires employees in the same kind of position as the employee to retire

Retirement Age – Employer’s Normal Retirement Age (if there is one) or Default Retirement Age of 65

The end of ageism?

The new law came into effect in October 2006 By September 2007, more than 2000 allegations of

age discrimination had been lodged with the Employment Tribunal Service

In the same period (October 2007-September 2007) 16,000,000 people said they had witnessed ageist practices in the workplace

(Source: Employers Forum on Age)

What next?

Heyday is taking the government to the European Court of Human Rights, claiming the default retirement age is illegal

A final decision is not expected before 2009, but an Advocate-General (senior legal advisor to the European Court of Justice) backed the UK legislation as it stands in a non-binding judgment on 23 September 2008.

If Heyday win, it could lead to countless cases of discrimination being lodged by people who were retired, apparently legally, at 65 by their employers!

A similar appeal to the European Courts from Spain failed. The Government will review the legislation in 2011. A new Equality Bill has been announced

The New Equality Bill

Public bodies will have to monitor not only race disability and gender, but also gender reassignment, sexual orientation, religion & belief AND AGE

Unjustifiable age discrimination for over-18s will be banned e.g. refusing medical treatment because of age, differential treatment in mental health care, etc

Free bus passes for over 60s, flu jabs, etc will still be lawful, as will justifiable age-based treatment in e.g. financial services.

A working group will investigate areas of age discrimination and report back before the bill is drafted.

Public bodies will have to provide clear transparent information on equalities, ban pay secrecy clauses, etc.

New Equality Bill cont

Positive discrimination will be allowed in some circumstances e.g. where there are two equally good candidates, the one from an under-represented group can be chosen.

It will still be unlawful to promote someone less suitable than their rival just because they are from an under-represented group.

Employment tribunals will get more powers such as the right to make recommendations, and hear cases on grounds of multiple discrimination.

Wise Owls Employment Agency

15 Old Ford Road

London

E2 9PJ

(020) 8983 9716

traintogain@wiseowls.co.uk

www.wiseowls.co.uk