Welcome to the age-free workplace

The world of work has suddenly become an age-free zone.

The ‘old boy’ in accounts has disappeared along with the ‘young girl’ on the switchboard. Both have been replaced by ‘ageless’ employees whose merit is determined purely by their ability without any reference to their birth certificate.

They can’t be judged by their age in the same way that they can’t be judged by their race, sex or religion.

At least that is what has happened in firms who have taken on board the sweeping changes heralded by the age discrimination laws that came into effect on October 1st.
The regulations have been described as the most fundamental change to employment law in this country for a generation. That being the case, it’s hardly surprising that the changes have already attracted widespread publicity.

In spite of this, however, some firms still haven’t caught up with the full implications of the regulations. Unfortunately for them, ignorance is far from bliss where age regulations are concerned.

Breaches can carry unlimited fines so any mistakes could prove costly. Any firm that hasn’t already sought advice on putting compliance procedures in place should seek legal advice as soon as possible. In the meantime, it may be useful to recap on some of the main changes that now affect every aspect of employment from recruitment through to promotions and all the way on to retirement.

Recruitment
Firms won’t be able to specify age limits such as ‘under 25’ when recruiting new staff. Adverts such ‘bright, energetic, dynamic’ which imply a preferred age group will also be unacceptable. This cuts both way with the regulations offering equal protection to younger applicants. It will be unlawful, for example, to discriminate against young people by setting arbitrary conditions such as insisting on at least ten years experience – a condition which by definition, people in their 20s would be unable to meet.

However, employers do not have to recruit people who are within six months of retirement age.

At work

It will be unlawful to discriminate against any employee on the grounds of age. Age cannot be used as a basis for deciding on levels of pay or benefits. Benefits based on
five year’s service must be seen to recognise experience or reward loyalty.
The national minimum wage bands will still apply.

Most of the elements relating to occupational pension schemes will be exempted. There are some exceptions so it would be wise to seek advice before making lasting decisions that could later prove costly.

There is no upper age limit at which employees can claim unfair dismissal and redundancies cannot be based on age or length of service. The simple process of last in first out can no longer apply.

Promotions
You cannot ignore someone for promotion simply because you consider them to be too young or too old. There has to be other objective reasons. The same applies to training, so you cannot overlook someone simply because you feel they are too old to learn new skills or won’t be around long enough to make the investment worthwhile.

Retirement
The national default retirement age will be 65. Employers can oblige employees to retire at that age but it will be unlawful to oblige workers to leave before then.

There is now a set process for handling retirements that must be followed. The employer must write to employees at least six months before their expected retirement date informing them that they have a right to request to remain at work. Such requests have to be considered but they don’t have to be granted. However, the employer must inform the employee in writing of the decision.

If the answer is no then the employer doesn’t have to give a reason but he does have to allow the employee to appeal.

It is important not to underestimate the impact that age regulations could have. There was a 40 per cent increase in tribunal cases when age legislation was introduced in the United States. In Ireland, which has also pioneered new regulations, one in five tribunal cases is now to do with age.

But it would be wrong to think the same thing is automatically going to happen here. We have the advantage of being able to learn from their experience. The lesson that emerges from other countries is that it’s not so much the regulations that cause the problem, but the unwillingness of many firms to prepare for them properly.

Firms who put the right procedures in place should have little to fear.

Sally Laughton is a Solicitor at Andersons Solicitors in Nottingham, she can be contacted on 0115 988 6736 or email slaughton@andersonssolicitors.co.uk

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