When was the last time you reviewed you employment documentation to ensure you aren’t discriminating against age?
- Stipulating age restrictions on job advertisements
- Forcing employees to retire at a certain age
- Only recruiting employees from specific age groups
- Using ageist language such as referring to someone as a “youngster” or “old timer”
- Asking for a date of birth on application forms
So what do you need to be mindful of?
The Equality Act 2010 not only prohibits employers from discriminating on the grounds of age, but also other areas such as sex, race, disability and religion. The regulations are designed to protect workers of all ages in all aspects of employment, including recruitment, promotion, redundancy and vocational training.
A recent discrimination case highlighted the importance of keeping employment documentation up-to-date so as not to fall foul of evolving employment legislation.
In January 2017, an employment tribunal (in the case of McCloud and others v Lord Chancellor and Secretary of State for Justice and another) looked at the transitional provisions relating to the judicial pension scheme. The Government introduced a new scheme that provided for varying degrees of benefits depending on age. In effect, older judges would be at an advantage by the new pension scheme, whereas younger judges had to move into a scheme with less favourable terms. The tribunal found that the government was not justified in favouring the judges closest to retirement and therefore had indirectly discriminated against younger judges.
This case highlights the changing demographic of the labour market and the issues that come with it, as people are living longer and are therefore expected to work longer.
At Employee Management Limited, it’s a bit of a mantra of ours that employers should regularly review and update employment documentation, not only in line with developments in legislation and case law, but also to ensure they suit their current business requirements. Additionally, any new policies, procedures or schemes should be checked for to ensure there are no discriminatory aspects that can’t be objectively justified. Key considerations include:
- The default retirement age was abolished in 2011 – employees can no longer be forced to retire at a certain age unless such a policy is a proportionate means of achieving a legitimate aim
- Service-related benefits such as additional holidays, bonus schemes etc. are only permissible if they are linked to service of five years or less. Otherwise, an employer must be able to objectively justify them.
- In recruitment advertising, be aware that specific age requirements and the use of words such as ‘dynamic’, ‘energetic’, ‘mature’ and ‘experienced’ can be deemed discriminatory on the grounds of age.
- Using “last in, first out” as a redundancy selection criterion is likely to put younger employees at a particular disadvantage on the basis that they are more likely to have the shortest service. This could constitute indirect age discrimination.
If you are an employer with doubts as to whether your employment documentation is fit for purpose in any of the areas touched on in this article, please contact one of our HR consultants for assistance.