Age Discrimination Laws

On Sunday 1 October the new age discrimination laws (Employment Equality Regulations) came in to force. Businesses need to check that their policies and practices comply with new age discrimination legislation or face potentially unlimited compensation payouts. 

Matthew Brain, an employment partner with national law firm Irwin Mitchell, believes too many employers have not updated their internal procedures to take account of what he believes is the most complex discrimination legislation yet.

Mr Brain said: "There is a strong persuasive case for this new legislation. Our ageing population will lead to well over a third of the workforce being aged 50 or over by the mid-2020s, but employment amongst the 55 - 65 age group has rapidly declined.

In 1975, over 95 per cent of this age group were employed, but in 1999 this figure had fallen to just 60 per cent and it continues to drop. Older people will become an ever more significant proportion of the population and society will increasingly depend on their contribution.

New age discrimination laws offer protection to young and older workers

However, the new regulations offer protection, not only for older workers, but also younger people, and it's this dual aspect which creates its unprecedented complexity."

Mr Brain warned bosses recruiting employees and asking for applicants with more than 5 or 10 years' experience, for example, could be seen as indirectly discriminating against younger workers, who would not have had the opportunity to amass such time in a job.

He said: "Alternatively, bosses restricting a position to recent graduates would be indirectly discriminating against older workers, who are far less likely to have graduated recently than comparable individuals in their early 20s.

Stipulating that a role is subject to a candidate passing a satisfactory health or fitness test could also be seen to put older applicants at a disadvantage."

Mr Brain also warned of the need to comply with new statutory procedures when retiring employees, who will have the right to formally request to carry on working beyond their intended retirement date.

He said: "Giving access to promotion and training is another area fraught with danger, as is awarding different levels of benefit based on length of service.

However it's not all bad news for employers. The legislation allows businesses whose activities may be deemed discriminatory to defend their position, by demonstrating that they are justifiable as a proportionate means of achieving a legitimate aim of the business.

Ostensibly discriminatory practices may be acceptable if the actions are designed to, for example, protect the health, welfare and safety of young or old people, facilitate employment planning, encourage or reward loyalty, or encourage the recruitment or retaining of older people."

Businesses need to show they are not in breach of age discrimination laws

Mr Brain said businesses should maintain records, showing the age profile of the workforce and proportions of particular age groups employed in specific roles or successful in promotions, for example.

He said: "Businesses must make sure their houses are in order and be able to show they are not practicing unjustifiable discrimination or are taking actions to eliminate it.

Particular attention should be paid to equal opportunity policies, advertisements, application forms, job specifications, interviews, appraisals, and pay and benefits structures."

Companies concerned about the implication of the new age discrimination legislation can contact Irwin Mitchell's employment team on 0370 1500 100

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If you or someone you know feels they have been discriminated against by employers, our solicitors can help. Visit our employment law section.