New regulations dealing with age discrimination will have
a significant impact on employment practices and not least
on recruitment and selection, says Guy Guinan, (right)
employment partner at law firm Halliwells LLP.
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Over
65s are to get the same rights to unfair dismissal and redundancy
payments as younger workers under new measures to outlaw age discrimination
in the workplace, Trade and Industry Secretary Alan Johnson has
announced.
The new measures are the final stage of implementing the European
Employment Directive and are scheduled to come into force on 1
October 2006.
If approved the Employment Equality (Age) Regulations will ban
age discrimination in recruitment, promotion and training; ban
all retirement ages below 65, except where objectively justified;
and remove the current upper age limit for unfair dismissal and
redundancy rights.
They will also introduce a duty for employers to consider an employee's
request to continue working beyond retirement; and a requirement
for employers to give written notification to employees at least
six months in advance of their intended retirement date.
The Government has promised that official guidance will be given
well in advance of the implementation date to allow employers
sufficient opportunity to prepare for the new laws. However there
is already important guidance set out in the Code of Practice
on Age Diversity in Employment. This was published as long ago
as June 1999.
The aim of the Code of Practice was for employers to achieve a
'standard' level in six areas: recruitment; selection; promotion;
training and development; redundancy; and retirement.
The Code was only voluntary and the lack of any enforcement provision
meant the UK had to make further changes to comply with the European
Directive which requires, amongst other things, a means of redress
for victims of age discrimination.
The new public consultation paper outlines those proposed further
changes. They will certainly impinge upon a raft of HR policies,
including recruitment.
Breaches of the age discrimination legislation at the recruitment
stage are much more likely to lead to claims than at some later
stages of employment.
Failed applicants have much less to dissuade them from commencing
litigation than an employee; they have no employment relationship
to continue, no loyalty to the business or to individuals, and
no reference to worry about. They are also embittered toward the
employer.
Discrimination claims are already the most common form of claim
made in relation to the recruitment process and it is worth noting
that there is no limit on the level of compensation that can be
awarded to victims of unlawful discrimination.
The fact is that everybody belongs to a particular age group and
may therefore claim that a recruitment decision which
goes the wrong
way was discriminatory in nature. This means the new legislation
is likely to have a huge impact.
In Ireland, where age discrimination legislation is already in
place, nearly one in five of all employment cases now relate to
age.
It may still seem some time off but if you consider that from
October 2006 all recruitment practices will be subject to potential
legal challenge on the grounds of age discrimination then now
is the time to start preparation.
There is no exemption and no staggered implementation.
From next year there will be a possibility of a claim whenever
a business recruits an employee below a justified retirement age.
Prior to advertising a role as vacant it is usual for an employer
to draw up a job and candidate specification. Sometimes it is
claimed this amounts to no more than stereotyping the last person
who held the position. However, it will from October next year
become even more important to analyse what the role genuinely
requires. Employers should look at the duties, the responsibilities,
and day to day skill requirements, and other attributes required.
Clearly the input of employees carrying out the role will be invaluable.
In this way the focus is drawn, right from the start, away from
issues such as age, experience or qualifications.
Reassessing requirements will also be good preparation for the
next task, which will be to draft a job advertisement. The wording
used is a key area and one where the unwary are likely quickly
to find themselves facing compensation claims. Some, some obvious,
terms previously used will have to be discarded. Any advert requiring
'young and energetic candidates' clearly will not be acceptable.
Neither will 'junior office clerk'.
But what about an advert for somebody with ‘10 years of
experience’? This will automatically rule out most candidates
under 25 years of age and could easily be challenged - although
an employer may be able to justify the requirement.
Using photographs in advertisements may also be an issue as these
can be taken to suggest that a 'typical' employee will be of a
certain age.
Similarly employers who concentrate their recruitment on a certain
section of the public could find difficulties. It will be necessary
to take care where adverts are placed and that because of a publication's
readership and circulation this does not amount to a concerted
campaign to reach a certain age group.
Simply carrying out all recruitment by going round universities
is also very likely to show an imbalance in the age range of candidates.
Employers will also have to be careful about use of recruitment
agencies. Some currently focus upon certain age groups, such as
the over 50s. Clearly this practice will not be lawful after October
2006 and the agencies should have by that time stopped any such
practice.
Standard application forms usually include boxes requesting information
about the candidate's personal details. This will invariably mean
that the age or the date of birth of the candidate will be requested.
The new legislation does not say employers may no longer request
such details. However, doing so could put employers at risk.
Serial saboteur applicants have made an appearance over recent
years. Such individuals makes multiple applications for the same
position, one genuine application under their correct name, and
at least one other application with the same basic information
but declaring a different race, sex or disabled status. The applicant
then tracks the different treatment received by the different
applications.
If the applicant's genuine application receives less favourable
treatment than their falsified application they then have evidence
to suggest that the employer discriminates against applicants
of a particular race, gender or disability. The employer is then
left having to justify its different treatment of two materially
identical applications. And this becomes particularly difficult
if the employer has no contemporaneous written evidence of the
reasons for the decisions made for each application.
Requiring that an applicant give his or her date of birth or age
on the application form leaves open the risk that in addition
to general complaints of age discrimination a 'serial' applicant
may put in more than one application with different ages.
Consideration should be given to whether the information is really
needed at all. The impact on employers of the new regulations
cannot be overstressed. All employment practices and policies
will have to be reviewed and any changes needed made sooner rather
than later.
