One month to go

From 1 October, UK employers must comply with new anti-age discrimination laws. Personnel Today brings together a group of legal and industry experts to examine how different sectors are shaping up, and what specific threats they will face.

Catering and hospitality

Hotel and catering is renowned for being a 'young' industry, and many employers in the sector are unconvinced of the business benefits of the new laws.

A recent study by the Thames Gateway Forum on Equality, Access and Participation revealed a clear bias in the sector towards employing people under 30. A heavy reliance on casual student labour and a desire to reflect younger clientele means many establishments confine themselves to a narrow recruitment pool.

Anne Pierce, chief executive of Springboard, a careers portal for the hospitality industry, says the sector needs to see age legislation as an opportunity rather than a burden. "Employers must not bury their heads in the sand and continue as if age legislation won't hit them," she says. "All the research indicates that good age practices help improve staff retention, so we have everything to gain from being ready."

Because of high labour turnover, the sector will need an additional 850,000 people by 2014, so it needs to broaden its approach to recruit from all age groups.

What to watch out for:

• Job ads looking for 'young dynamic bar staff' or similar could be found to be indirectly discriminatory.
• Try not to match the selection criteria to the audience of the venue - if a restaurant is known for its younger clientele, it may not attract a wider pool of applicants of all ages.
• If bar, restaurant or hotel owners continue to recruit within a certain age bracket, they will have to objectively justify the need for that age band of staff. Consider applications from older workers to even out the predominance of younger employees.
• Beware of informal methods of recruitment, such as word of mouth, as this may lead to age bias.
• Don't use age to fix starting salary - 21% of companies in the hospitality sector do this, according to research from the Age Partnership Group, and smaller firms are more likely to do this than larger employers.
• Don't use 'last in, first out' as a basis for redundancy, as in this sector it is more than likely to discriminate against the younger members of the workforce.

Construction/engineering

Only one-third of employers in the construction industry believe that the age discrimination laws will increase choice in the labour market, while just one-quarter think it will lead to 'better workers', according to statistics from the Age Partnership Group. Nevertheless, with just a month to go, employers in the sector need to focus on not only how they recruit, but how they retain the knowledge of older workers. In some engineering companies, for example, more than half the workforce is over 50.

"Employers need to proactively attack biased company attitudes, and train all managers at all levels of the business to be aware of age discrimination," says Dave Leyshon, managing director of recruitment company CBSButler.

Chrissie Chadney, head of HR at construction firm Willmott Dixon, believes the main challenges facing the sector will be in balancing the age legislation requirements with the health and safety issues of working on site. "A certain level of fitness is required to, for example, climb up scaffolding. Sometimes the reality is that we can't find non-active work for all of our site managers. Health and safety will always come first," she says.

What to watch out for:

• Use of contract and agency workers is common in construction. Ensure that the recruitment agency you use is not discriminating on the grounds of age.
• Health checks should be available to people of all ages. Avoid assumptions about capability or medical fitness based purely on an employee's age.
• Ensure that life assurance and other insurance benefits are still available to older workers who wish to continue working beyond the retirement age.
• Don't use physical strength as a recruitment criterion. This is lawful where the requirement is genuine, but will be unlawful where employers decide strength simply on the basis of age.
• It is unlawful to specify maximum recruitment ages more than six months before your firm's retirement age - 27% of construction companies currently do this, according to research by the Age Partnership Group.
• Don't promote staff based on age - the Age Partnership Group found that a small but significant proportion of employers in the sector believe older people are less likely to be promoted, which will be unlawful.

Retail

Although the retail sector has one of the best records for promoting equal opportunities, employers can't be too complacent, says Alan Roberts, chief executive of Skillsmart Retail, the sector skills council for the retail industry.

Statistics from the Age Partnership Group show there is still an awareness gap when it comes to recognising the benefits of the new age legislation: only 37% of retail employers expect it to improve staff retention, while just 30% think it will improve choice in the labour market.

The main challenge for retailers will be in turning around entrenched recruitment practices tied into their consumer brand. "Many shops don't realise they're recruiting to a particular mould," explains Audrey Williams, a partner in the HR practice at law firm Eversheds. "It's difficult to show there's a genuine and necessary occupational requirement to employ someone of a certain age in this sector."

She adds that campaigns targeting specific age bands, such as B&Q and Asda recruiting older workers, will become more difficult to justify without proving that these groups are under-represented in the workforce.

What to watch out for:

• Just because you have a young team, it does not mean that you can recruit the same sort of age to 'fit in'.
• Avoid the use of the words 'mature' or 'dynamic' in your recruitment ads. Also steer clear of words that imply ages, and avoid specifying a particular age or length of experience.
• Carefully select pictures used in job ads to avoid indicating an age bias. For example, does your promotional recruitment material only include young models wearing what you sell?
• Publicise vacancies in a variety of publications that are read by people of all ages.
• Do not pass age information to store managers or those who are responsible for interviewing candidates, as this may increase the risk of unfair discrimination. More than half (54%) of employers in the retail sector still do this, according to the Age Partnership Group.

Health and social care

The health and social care sector has an unusually old workforce and is constantly facing challenges in recruiting to meet private healthcare and NHS staffing needs.

Carole Smith, who heads up age diversity at employers' organisation NHS Employers, urges employers to bear this in mind when planning how they will tackle the legislation. "We need to make sure that changes to prepare for the new age legislation fit in with the demands of our service, while also retaining valuable staff," she says.

Compared with other sectors, health and social care employers are better prepared for the age legislation - they are more likely to allow employees flexibility in choosing retirement dates, or to stay past retirement age, according to research by the Age Partnership Group.

One of the key challenges, however, will be in educating such a vast workforce. NHS Employers has advised its members to ensure training records are kept up to date so they can demonstrate that reasonable steps have been taken to prevent harassment and victimisation on the basis of a person's age.

NHS Employers has issued a wide range of information and tools for HR professionals in the sector, which are available online at www.nhsemployers.org.

What to watch out for:

• Look at the age profile of individuals against the hours that they are contracted to work - are working patterns skewed depending on which age group they're in?
• Applying long incremental pay scales - this is a particular problem in social care, where employers base many recruitment decisions on length of service because of the sensitive nature of some roles. Incremental schemes beyond five years will require objective justification.
• Using length of service to select for redundancy - about 40% of employers in health and social care currently do this, according to research by the Age Partnership Group. This practice will become unlawful in October.
• Do not set maximum ages for entitlement to sick pay - if based on age alone, this will be unlawful. Health and social care employers are more likely than other sectors to do this, according to the Age Partnership Group.

Transport

"With new age laws almost upon us, logistics firms - no matter how progressive - need to act now to comply with the legislative changes when they come into force," says Ian Hetherington, chief executive of industry body Skills for Logistics.

With a rapidly maturing workforce and a skills deficit of around 15,000 to 20,000 people, the Chartered Institute of Logistics and Transport has warned that the industry needs to attract more people at the early stage of their careers if it is to avert a crisis. "We're more likely to discriminate against the young," explains Dorothea Carvalho, the body's director of professional development. "Some insurance companies won't insure people under 25, and if we don't get them into the industry before then we've lost them."

But that doesn't mean the industry is focusing purely on recruiting young people. First Group, the largest bus operator in the UK, has already launched a scheme designed to attract and retain older employees. Under 'The First flexible decade' programme, staff between 60 and 70 can combine flexible working opportunities with pension scheme options and arrange their hours to suit them.

What to watch out for:

• Ensure recruitment campaigns targeted at attracting younger workers are balanced by other campaigns focusing on a diverse age range. Some transport and logistics companies have set up graduate schemes and have added parallel schemes to ensure no age groups are excluded.
• If you require drivers to have fitness tests at certain ages, make sure there is a genuine occupational requirement for these or they could be considered discriminatory.
• Don't discriminate against younger drivers because of difficulties with insurance. Consider whether there are non-driving roles they could fill until insurers agree to cover them.
• Don't use time left to retirement as a basis to exclude employees from training. This will be lawful, but only if there is a legitimate business reason, such as a demonstrable connection between the cost of training and the time for which the employee will stay in work.

Thanks to:

Age Positive and the Age Partnership Group - visit http://www.agepositive.gov.uk  for more details and advice

Ginny Hallam, associate employment lawyer, Berryman

Peter Stevens and Paul Gaff, Thomas Eggar

Sikin Andela, employment lawyer, Glovers

Jonathan Maude and Sasha Willmott, employment law team, Manches

Geoff Dossetter, director of external affairs, Freight Transport Agency