Law And You

Law leaves few grey areas in age discrimination

5th October2006 - The Daily Telegraph

Roland Gribben examines the potential pitfalls raised for employers by new anti-ageist legislation

Age discrimination has been outlawed in any place of employment since Sunday. The intention of the legislation is to improve employment opportunities and choice for individuals and encourage more people to remain in work longer.

Sounds simple - but it will involve a significant change to the way many companies recruit, train, promote, reward and retire their staff. There are two areas of particular concern

Recruitment

Employers are being advised to carry out a thorough overhaul of their recruitment procedures and policies to avoid falling into the considerable number of age discrimination traps posed by the legislation.

Broadly, it involves exercising a large degree of common sense but guidance provided by Acas, the arbitration agency, pinpoints the danger areas.

One of the key recommendations is the removal of any mention of age or date of birth in application forms. The information should be limited to a diversity monitoring form held by the personnel department, says Acas. The guidance even raises the prospect of age discrimination extending to the stage but points out that a producer casting a play with parts for older or younger characters could avoid breaching the regulations by using one of the exemptions - an "objective justification" - on the grounds that the script demanded discrimination.

Application forms should be closely vetted to ensure employers are not asking for unnecessary information about periods and dates. Asking for age-related information on an application form "could allow discrimination to take place".

Job descriptions should avoid reference to age, however oblique. Asking for "so many years' experience" could cause problems because it might rule out younger people who have the skills needed for the job but not the experience.

A job seeker could challenge any "time requirement" and an employer could face problems in justifying it in "objective terms".

There are also risks in asking for details of educational and vocational qualifications. Employers are advised to ensure that qualifications specified do not disadvantage people of different ages. They should ask themselves "are the qualifications really necessary?"

The way jobs are advertised also poses pitfalls. Using a publication or employment agency focused on a niche market could carry the risk of indirect discrimination because it might "limit the diversity of applicants". So the Acas advice is "advertise in a way that is accessible to a large audience".

The language is also important. The use of descriptions such as "mature", "young" or "energetic" could be construed as seeking "someone of a certain age".

Promotional material, particularly pictures, should be closely scrutinised to avoid the risk of "hidden messages".

Care is also needed in specifying "graduates" for jobs since the term "can be interpreted as code for someone in their early 20s".

Limiting recruitment to the university "milk round" may leave an employer facing a charge of indirect age discrimination.

A more broadly-based approach to recruitment would avoid the risk, says Acas. People involved in shortlisting candidates will have to base their decisions on "skill and ability" because they will be bereft of age guidance.

Interviewers will be on dangerous ground if they ask age-related questions such as "how would you feel about managing older/ younger people". All decisions should be checked for bias and interviewers trained in the skills required to avoid breaking the new rules. There are limited circumstances where employers can avoid the age trap but exemptions must pass the objective justification test.

For example, it might be necessary to fix a maximum age for the recruitment or promotion of employees.

Harassment

Harassment can take a variety of forms. There are the obvious examples of bullying, discrimination and victimisation. The new law covers all the broad headings but goes considerably deeper to include both recognisable and unrecognisable forms of harassment.

Here is what employers are told to guard against to avoid appearing before an employment tribunal: "Harassment includes behaviour that is offensive, frightening or in any way distressing. It may be intentional bullying which is obvious or violent but it can also be unintentional, subtle and insidious. It may involve nicknames, teasing, name calling or other behaviour which is not with malicious intent but which is upsetting.

"It may be about the individual's age or it may be about the age of those with whom the individual associates. It may not be targeted at an individual(s) but consist of a general culture which, for instance, appears to tolerate the telling of ageist jokes.

"You may be held responsible for the actions of your employees as well as the employees being individually responsible.

"If harassment takes place in the workplace or at a time and place associated with the workplace, for example, a work-related social gathering, you may be liable. You may be ordered to pay compensation unless it can be shown that you took reasonable steps to prevent harassment. Individuals who harass may also be ordered to pay compensation.

"It is good practice to protect your workers from harassment by third parties such as service users and customers."

Practical examples? The guidance has them aplenty. For example, a young employee is continually told he is "wet behind the ears" and "straight out of the pram" which he finds humiliating and distressing. Verdict? Harassment.

An employee has a father working in the same workplace. People in the workplace often tell jokes about "old fogies" and tease the employee about teaching "old dogs new tricks". Verdict? This may be harassment on the grounds of age even though it is not the victim's own age that is the subject of the teasing.

Employers are predictably told to tread carefully when investigating claims of harassment because it is often subjective "so think carefully about the complainant's perception of what has happened to them. Ask yourself if what has taken place could be reasonably considered to have caused offence".

Then there is victimisation to take into account. The guidance note describes it as a situation "where an individual is treated detrimentally because they have made a complaint about discrimination or harassment or have given evidence or intend to give evidence relating to a complaint about discrimination or harassment".

"They may become labelled 'trouble maker', denied promotion or training or 'sent to Coventry' by their colleagues. If this happens, or if you fail to take reasonable steps to prevent it from happening, you may be ordered to pay compensation. Individuals who victimise may also be ordered to pay compensation."

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