Ready for 1.10.06?

Age discrimination is the final element of equality legislation which already covers race, sex, disability, sexual orientation, religion or belief. An Age Concern survey conducted in 2004 indicated that ‘Ageism' is the last form of legal discrimination. Often, it is both invisible and institutionalised, with many companies having upper age limits on their products (such as insurance), for example. In a similar vein, people can be made redundant simply because they are deemed to be too old.

At last, regulation on age discrimination in the workplace is now awaiting Parliamentary clearances, and due to come into force on 1 October 2006. Those regulations will be set out in accordance with the European Union's Employment Directive on Equal Treatment.

In its partial Regulatory Impact Assessment of July 2005, the Department of Trade and Industry (DTI) reported that evidence suggests those most affected by age discrimination at work tend to be older workers (of 50 years and over) and younger employees (below 25).

In addition, the final document pointed out that age discrimination is consistent with lower employment rates for younger and older workers, as well as the higher incidence of redundancy, inactivity and long-term unemployment among the latter.

The new legislation will make it unlawful to discriminate against individuals in the workplace on the basis of age in relation to promotion, recruitment and Terms and Conditions (encompassing retirement and redundancy, pay and pension schemes), vocational training (including higher and further education) and in respect of membership and/or representation of any professional organisations (taking in both employers' organisations and Trade Unions) except where these are ‘objectively justified'.

It is most important that employers are fully aware of any circumstances when treatment on the grounds of age will be lawful. Provision has been made for: ‘Exemptions to be allowed as Genuine Occupational Requirements, and if there is an ‘objective' justification'. The employer will have to show that there is an appropriate and necessary (proportionate) means of achieving that end goal.

In the DTI's consultation paper ‘Coming of Age' (dated 14 July last year), the Government states that: "We consider age will only be a genuine occupational requirement in very few cases. Where it is invoked, it would still have to be established that the use of the age requirement is proportionate."

It may sometimes be necessary to make special provisions for younger or older workers in order to protect their safety and welfare. However, if employers are challenged, they will then have to show an Employment Tribunal that their approach is an appropriate and necessary way of fulfilling a legitimate aim.

Age discrimination claims

In other countries with age discrimination laws in place (including the United States), this situation has led to a number of claims for compensation. The prospect of some UK employees making claims for unlimited damages (and the subsequent negative publicity that would ensue) should ensure that UK security managers and their counterparts in Human Resources will take positive action to prevent successful litigation.

However, it's still possible that a few companies will merely go through the motions of abiding with the age regulations, and make every attempt to ensure that there's no written evidence proving any discrimination has taken place. It's therefore vital that management make great efforts to change the company culture (where necessary), and consistently point out the benefits to be had from an age-diverse (security) workforce.

At the same time, it is just as possible that a minority of law firms will go ‘touting' for business, sometimes offering representation on a ‘no win, no fee' basis. Hence the need for total compliance.

The Government's ‘Age Positive' message indicates that: "Employers stand to gain significant benefits from ensuring that they adopt non-ageist employment practices. This is particularly relevant against the current backdrop of skills shortages and a changing demographic position, with older workers forming a larger proportion of the workforce."

Many employers have already found that employing an age-diverse workforce realises business benefits and savings through the fostering of a highly-skilled and well-experienced workforce.

Staff turnover in the security guarding sector is notoriously high. There is now an ever-increasing belief that a more balanced workforce would reduce that ‘churn' and offer greater job satisfaction in view of the wider mix of ages, skills and expertise.

Clearly, companies will have to ensure that their recruitment processes - including advertising - are not discriminatory. They must also ensure that their recruitment staff have been adequately trained and educated in equal opportunities policies (including the new age discrimination legislation). In addition, they must be confident that their recruitment agencies can operate age-diverse principles in their recruitment activities.

The popular perceptions

The Employers Forum on Age recently conducted a survey of 1,600 UK employees, reporting that ageism at work is a far bigger problem for younger as opposed to older people (for example, 25% of school-leavers have been confronted by age discrimination compared with 18% of those over 60-years-old).

Some believe that there is discrimination against young and old. They complain about discriminatory language (such as ‘mature candidate sought', ‘recent young graduate', ‘must have a minimum of GCSEs in English and Mathematics', etc). The latter would preclude older people who were educated at a time when GCSEs didn't exist! In some companies, meanwhile, there's an emphasis on being ‘young and fit' for certain jobs, including the security function. Age-related gifts and long service medals would also need to be reviewed.

An AMICUS Trade Union study conducted last year indicated that over 80% of IT employees are under 45 years of age, and that 71% of all IT staff believe that their managers treat people less favourably because of age. There was also an interesting comparison made between different grades of manager. Senior managers were blamed by IT staff for treating older workers unfairly by no less than 79% of respondents, while line managers were blamed by 56%.

Somewhat surprisingly, 80% of cases reported to the UK National Workplace Bullying Advice Line involve people over 40 years old. Some employers believe that such individuals have become expensive and that, if they can be ‘bullied out', the cost of redundancies will be avoided and younger people can be brought in to replace them on much lower salaries.

Facing up to discrimination

Companies are beginning to monitor what percentage of their employees are in various age groups, and also the percentage who apply for jobs from the different age groups. If those same companies ensure there's no employee age discrimination, they should be able to welcome 1 October 2006 with open arms and thus reap the full benefits of having a diverse workforce in place.

One last thing. The concept of work-life balance has been kicking around for a few years now, and yet some companies are missing out on the opportunities it can bring to employees and to themselves. They could offer more flexi-time and part-time working, phased retirement, mentoring opportunities and job share schemes, all of which would provide staff of all ages with an effective work-life regime.