In the workplace, youth is seen as a valuable asset. When the benefits of youth are emphasised in relation to personnel and staffing issues to the exclusion of other factors, employers may well find themselves discriminating on the basis of age. Employers may also be depriving themselves of the many benefits of an age-diverse workforce – higher retention rates; lower rates of absenteeism; greater flexibility; and a wider pool of available skills. This has a major economic impact. According to the independent charity - The Age and Employment Network - age discrimination results in the UK purse being £5.5bn lighter through lost income tax and paid unemployment benefits, on top of an estimated £30bn cost to the wider economy.
In an effort to tackle misguided attitudes relating to age in the workplace, and to implement the European Equal Treatment Directive, the Employment Equality (Age) Regulations 2006 have been introduced. From 1 October 2006, the Regulations will protect all workers – young and old – from discrimination on the basis of their age.
The Regulations – which apply to employment and vocational training – make it unlawful to take decisions based upon a person's age, rather than their competence. This will affect the whole life cycle of the employment relationship, from recruitment and selection, through pay, benefits and training to dismissal, redundancy and retirement. It will cover both direct discrimination, where, for example, health checks are available only to employees who are over a certain age, and indirect discrimination, e.g where recruitment advertisements are placed in magazines aimed squarely at young people, making it less likely that older people would access the advertisement, and so placing this age group at a detriment.
Compulsory retirement below the age of 65 will be unlawful, unless it can be objectively justified. Also, employees will have the right to request to work beyond the age of 65 and the employer will be under a duty to consider these requests.
In order to comply with the new Regulations, employers will have to alter their practices in almost all areas of their business. For example, those involved in recruitment will have to be very careful to ensure that there can be no perception of age bias; employers should take action to prevent bullying or harassment based on age; and retirement must be carried out in accordance with the "fair retirement procedure" provided in the Regulations.
The Irish experience – where age discrimination legislation was introduced in 1998 – suggests that this will be a fertile area for claims after 1 October.
Sheila Gunn is a partner specialising in employment law with law firm Shepherd and Wedderburn. 0141 566 8555