Although the Government launched a non-statutory Code of Practice in June 1999, legal protection against age discrimination has always seemed to be a concern for the future. However, formal legislation is now just around the corner and employers have less than a year to ensure they are prepared for it!
In July 2005, the DTI published the Employment Equality (Age) Regulations which will become law on 1 October 2006. Age is regularly used as a criterion for making decisions throughout the employment process, from recruitment through to retirement and therefore compliance with this new legislation will require a comprehensive review of employers’ attitudes and practices.
The proposed legal framework will be similar to existing discrimination laws in respect of direct and indirect discrimination although one distinction for employers is that they will be able to justify direct discrimination if it is ‘a proportionate means of achieving a legitimate aim’. An example of this might be the fixing of a minimum age to qualify for certain employment benefits in order to recruit or retain older people.
There will also be direct protection against harassment. So a mature trainee teacher tormented on the grounds of age during teaching experience will have recourse to the legislation if no action is taken by the school.
The regulations will have important implications in respect of the whole of the recruitment process and in particular advertising. It will no longer be possible to target certain age groups; for example a retailer of trendy fashion items will not be able to advertise for young shop assistants purely on the basis of targeting young buyers.
Protection will also apply to selection processes. So it may not be directly discriminatory to require all applicants to pass a health and fitness test for recruitment but it might be indirect age discrimination if people of certain ages were less likely to pass the test. This is more likely to be the case if the vacancy is for an administrative position which does not require certain levels of fitness, in contrast to a health instructor vacancy in a sports centre.
Employers will also need to think carefully about selection criteria for example requiring a courier to have held a driving licence for five years may be indirectly discriminatory as a higher proportion of those aged say 40 and above will have fulfilled this criteria than those aged 25!
Businesses need to review their processes very carefully before next year to ensure they don’t fall into further traps when trying to recruit in what is already a highly competitive market place.
Other key aspects of the legislation include: