Employment's golden age
As the net of political correctness closes in on what would, in some circumstances, be described as a grey area of the law, businesses are preparing to deal with an older workforce and increasing rights for younger people.
The occupational health (OH) team needs to be aware of the impending change in the law because of the links between health issues and those at the diverse ends of the age spectrum. An older workforce may need to have age-specific risk assessments, provided the assessments themselves are not seen as discriminatory.
The new law is designed to promote equality for all ages within the workforce. It will apply similar concepts to those of race, sex and disability discrimination so that it will be unlawful to discriminate against a person by reason of their age, whatever that age is.
The rules will apply not only to all age groups, but also to all sizes of employer, both large and small. Consultation, through the document entitled Equality and Diversity: Age Matters, (2) was completed in October 2003 on the scope of the new regulations, which must be finalised and in force by October 2006.
Remit of the new law
The law will prevent age discrimination in employment and vocational training.Duties will be imposed on employers, educational establishments (but not schools) and organisations such as trade unions and professional associations.
Protection will be far-reaching, covering all workers and applicants for work, as well as students and course applicants.Although office holders will be also be protected, at present the indications are that voluntary workers will be excluded. In line with recent developments in other areas of discrimination law, post-termination discriminatory acts, which are related to employment or other protected situations, will amount to victimisation, for which compensation can be awarded.
Direct and indirect discrimination will be covered. Thus, it will amount to direct discrimination to do or omit to do an act on the grounds of a person's age, subject to some defined exceptions. It is currently proposed that indirect discrimination will occur where, even if the effect is inadvertent, a condition, policy or practice affects a person because of their age. It will be necessary to show a strong defence of justification in order to defend a claim of indirect age discrimination when this comes into law.
Employers or providers of vocational training will have to justify age-related criteria within the following parameters:
- Health, welfare and safety
- Planning for succession in employment
- Specific training requirements for the job or course
- Encouraging loyalty
- The need for a reasonable period of service prior to retirement.
The age limit for bringing unfair dismissal claims will go for employees who have reached the age of 65 or the normal retirement age for their job. However, employers will be able to dismiss employees who have reached their contractual retirement age or such statutory retirement age that the Government may impose. Employers will have to be able to justify the imposition of a contractual retirement age.
Retirement
Other changes in the law will follow.Thus, the right to a redundancy payment will accrue in relation to years of work completed before the employee's 18th birthday and persons over 65 will be eligible.
The new law will provide for unfair dismissal compensation to be at the rate of one week's pay, subject to the current statutory limit, for up to 20 years of service, without reference to the employee's age.
Although the impending change will be welcomed by workaholics, late starters and those who need an income that cannot be provided by a pension, there should also be considerable benefits for skilled young people. The most obvious effects will be on older workers as there will be a revision to the retirement age for achieving a state pension. However, as the directive allows for late entry to company pension schemes in that it allows employers to set age requirements for entry and to use age in actuarial calculations on benefits, it is likely that the new UK law will encompass provisions allowing people to work longer and accrue further long-term benefits.
Effects on employment
At a time when pension funds are suffering dramatic shortfalls, it appears to be essential that there is legislation in place that encourages people to continue working to maintain income. Employers need to consider the cultural impact of newly-qualified older people coming into the work arena, as well as looking at varying their modus operandi in recruitment, selection and promotion.
Guidance is anticipated in relation to variation of retirement age and whether retirement should be compulsory at a specific age. Since there is a perception of increasing levels of ill-health as the human body suffers the onslaughts of age, there may be increasing links with disability discrimination, which needs to be borne in mind when drafting equal opportunities policies.
Getting ready
The Department of Work and Pensions published a survey on age discrimination in October 2003. (3) It showed that 67 per cent of those surveyed were aware that the new laws will be in force in three years' time. Almost as many (62 per cent) base recruitment and training purely on skills needs and do not rely on age as a determinative factor. More than half (55 per cent) do not use age as a criterion in redundancy selection.
It is sensible to start looking at the database on age for job applicants, entrants for training programmes, candidates for promotion, length of time in post and current actual retirement age.
It may be worth considering a confidential survey to find out the aspirations of the workforce so future planning can be based on an internal equal treatment framework.
Policies need to be reviewed so that harassment and victimisation are prohibited on the grounds of age. Training should be considered as there are many words and phrases that are unacceptable in terms of good taste, and could amount to a basis for a discrimination claim.
Recruitment programmes need to be reviewed. The advertisement for a 'mature' candidate may be discriminatory against a suitably-qualified younger person. All job specifications should be reviewed against the background of early sex discrimination law.
1. EC Equal Treatment Framework Directive (No.2000/78)
2. www.dti.gov.uk/er/equality/age.htm
Linda Goldman is a barrister at 7 New Square, Lincoln's Inn. She is head of training and education for Advisory, Consulting & Training Associates Ltd (ACTA). Joan Lewis is the lead consultant in employment law and HR for ACTA. ACTA, also trading as Virtual Personnel ™, is licensed by the General Council of the Bar under the BarDirect scheme in employment law matters, 020 8943 0393.
Notions of whether people will 'fit in' by reason of their age will have to be set aside.In Baker v Cornwall County Council, the Court of Appeal said: "An excuse such as 'we wanted someone who would fit in' is often a danger signal that the choice was influenced not by the qualifications of the successful candidate but by the sex or race of that candidate."
Fast-forward to 2006, and add 'or age', and the spectrum of discrimination is widened. And what about training and promotion? History tells us that objective grounds will be the only satisfactory way to establish that no discrimination took place if an otherwise suitable candidate is overlooked.
The Employment Tribunal has jurisdiction to award compensation for personal injury, including psychiatric damage, arising out of unlawful sex discrimination. The Court of Appeal held that where there is a link [between cause and effect], the employee is better to bring a discrimination claim rather than one for personal injury as the civil courts require the claimant to show their injury was reasonably foreseeable. More recently, in Essa v Laing Ltd, this principle was upheld. The decision, under appeal at the time of writing, was that the applicant does not have to show that psychiatric damage as a result of discrimination was reasonably foreseeable. It is enough to show that discrimination caused the psychiatric injury.
The problem for employers is that high awards can occur even without an element of personal injury, such as in cases where the applicant has no clinically diagnosed condition but suffers hurt feelings and a consequent loss of self-esteem. The loss of a job may plunge the individual into a depressed job market where, but for the employer's discrimination, he need not have been. It was said in British Sugar plc v Kirklees (1998), EAT: "Those prejudices are particularly relevant to an applicant claiming disability discrimination…" Therefore, consider the implications for age discrimination.
When considering the wording of advertisements or recruitment criteria, this case is a salutary reminder. Price was 35 when she applied for a job in the Civil Service, where the age criteria for entry was set between 17 and 28. Under the Sex Discrimination Act 1975, that amounted to indirect sex discrimination because the proportion of women who qualified on age grounds was significantly less than the number of men because women tend to start their careers later or may interrupt their careers in favour of family obligations. After October 2006, this sort of claim could be brought under the heading of age discrimination.
Section 109 of the Employment Rights Act 1996 provides that an employee is barred from bringing a claim for unfair dismissal to an employment tribunal if he has reached the age of 65 unless his employer has a "normal [or contractual] retiring age" for staff, which is higher. In this case, Wall had a contractual retiring age of 70 and he held a unique position as the employer's director general. Therefore, he could not be compared with any other employee.
The EAT considered the case of Age Concern Scotland v Hines (1983) EAT, in which the applicant was not unfairly dismissed after the contractual retirement age of 60 despite the employer having agreed that she could work past that age. She too was in a unique position. In this case, the EAT said that the policy underlying section109 was that employees who have a contractual retiring age over 65 are entitled to bring a claim for unfair dismissal to the employment tribunal if they are dismissed before reaching retirement age. The EAT said the fact there was a unique position meant there could be no comparator but the law does not provide for making a comparison. Thus, the EAT took the view that Wall's case could proceed in the employment tribunal. However, the employer has been given leave to take the case to the Court of Appeal.
Recently, a London employment tribunal held in another case that the upper qualifying age of 65 for unfair dismissal was unlawful but the EAT has overruled that decision. Until the law is changed, employees over normal retirement age (which, by contract may be above statutory retirement age) are not eligible to present a complaint of unfair dismissal nor are persons over the age of 65 eligible for a statutory redundancy payment.
