The problem
The target market for a chain of wine bars is young professionals. In keeping with the chain's image, its recruitment policy seeks to attract young bar staff. It advertises for experienced staff who must be under 30.
The law
The Employment Equality (Age) Regulations will come into force on 1 October this year, and will outlaw direct and indirect age discrimination in recruitment, employment and vocational training.
The new laws will give individuals important new rights, extend existing rights and remove traditional barriers. They will help ensure that people are no longer denied jobs or harassed because of their age, and, in most cases, workers of all ages will have an equal chance of training and promotion.
There are a number of exemptions to the law, but none that cover recruitment, unless there is a genuine occupational requirement that the jobholder must be of a particular age. Otherwise, treating people differently because of their age will only be lawful if it can be "objectively justified".
In its latest projections, the Office for National Statistics indicates that nearly one-third of the labour force will be over the age of 50 by 2020. Businesses increasingly need to recognise the benefits of age diversity in the workplace.
Treating staff fairly and recognising individual talents and needs is not just the right thing to do, it makes good business sense as well. Employers which recruit from the widest possible pool of applicants are able to choose the very best candidates. This has a positive effect on productivity.
Expert advice
The circumstances in which age will be a genuine occupational requirement are very limited, and are unlikely to apply to this situation.
Objective justification is also a tough test. Employers will have to be able to show that age-based recruitment is a "proportionate means of achieving a legitimate aim".
A legitimate aim might involve economic factors such as business needs and efficiency. However, for it to be proportionate, the employer will have to show that there was no reasonable alternative approach. It's likely to be very difficult to demonstrate either of these in the situation outlined above, since people over 30 can be as smart, energetic and trendy as younger people.
Legitimate aims cannot themselves be age-discriminatory.
Check list
- Check your recruitment and application procedures. If you use a recruitment agency, make sure you don't ask it to act unlawfully. If you do the recruitment yourself, ensure that your job advertisements do not discriminate on the grounds of age or any other factor.
- Check your employment rules and procedures, including the employment contracts you use, the staff handbook and the employment benefits, salary and otherwise, that you provide.
- Check your retirement procedures. The new regulations set a default retirement age of 65. If you have a lower retirement age for your staff, you should consider whether it needs to be maintained. If you wish to continue using a retirement age lower than 65, it will have to be objectively justified.
- The regulations also introduce new procedures for dealing with retirement. You will have to ensure that all retirement procedures you use comply with the legislation.
- Tackle harassment. Make it clear to all your managers and other employees that harassment on grounds of age will not be tolerated.
- Know your staff. The age regulations don't contain any obligation to collect information on the age profile of your workforce. However, it can be good practice to do so, since this will make it easier for you to see whether age discrimination is occurring. For instance, you will be able to check whether older workers receive significantly less training than younger workers within your business.
- Employers should already be adapting the age-based aspects of their human resources procedures. If they are not, they should consult the regulations and guidance immediately to avoid falling foul of the laws from 1 October.
Beware!
If a tribunal or court upholds a claim for age discrimination, it will be able to award financial compensation, including damages for injury to feelings. There is no limit on the amount of compensation.
Contacts
Department of Trade and Industry
www.dti.gov.uk/employment/discrimination/age-discrimination/
Acas
www.acas.org.uk