Discrimination is an absolute term isn’t it? You can’t have a policy that is a bit discriminatory, it either is or it isn’t. So interpreting the law around discrimination should be straightforward. But it seems that in the area of age discrimination in particular, there are several myths that have evolved that need exploring.
- Employers have no defence against acts of direct age discrimination
It would be logical to assume that discrimination on the grounds of age is treated in the same way as discrimination due to race, disability, gender or any of the other protected characteristics outlined in the Equality Act 2010.
But age discrimination is unique in that it can be justified by an employer if the employer can show that it is a proportionate means of achieving a legitimate aim. This means that in order to justify age discrimination, the employer has to demonstrate that it was a social policy, e.g. related to employment policy, the labour market or vocational training. It can’t be based on purely individual reasons such as cost control or market competitiveness.
- Employers can no longer enforce a compulsory retirement age
The default retirement age was abolished in October 2012 and retirement is no longer a fair reason to dismiss someone from employment. In most cases, it’s down to the employee to decide when they want to retire, not the employer.
However, employers can still operate a compulsory retirement age, if it can be objectively justified. In order to do this, the employer has to prove there is a legitimate aim behind the retirement age, as well as ensuring that a fair and proper process is followed. If it cannot be justified, then any enforced retirement would be direct discrimination on the grounds of age.
There have been a couple of high profile cases around this point specifically. The first was brought by two cricket umpires who were removed from the umpire list by the England and Wales Cricket Board when they met the ‘expected retirement age’ of 65. They lost their case as their employer was able to justify its decision, claiming that it wanted to recruit new umpires to ensure succession planning opportunities for the future.
The second was an Employment Appeal Tribunal test case from July this year involving over 1000 claimants and five police forces in the UK regarding a ruling that required police officers to retire after 30 years’ service as part of a cost cutting exercise, the so-called A19 rule. The Appeal Tribunal overturned a previous decision that the practice had been discriminatory, deeming the police forces to have taken an appropriate and reasonably necessary measure in retiring senior police officers.
- Specifying the number of years’ experience required in a job advert is age discrimination
Until fairly recently, it was common to include a minimum number of years’ experience when advertising a role. However, after the introduction of age discrimination legislation in 2006, this practice became potential indirect age discrimination: an advert specifying 5 years’ experience as a minimum, would rule out younger people, recent graduates for example, and is therefore disadvantaging them.
However, a company can still specify a minimum number of years’ experience, so long as it is justified. In the same way an employer could advertise for a ‘fully qualified Accountant’, thereby ruling out younger people who would not have had the time to train to this level, an employer can ask for a minimum number of years’ experience. The question really is whether this is necessary. Employers could rather specify the type or breadth of experience and the skill sets and competencies needed which may be more relevant to the role in question anyway.
Specifying number of years of experience needs to be applied appropriately. Certainly there can be a huge difference between someone with 1 years’ experience versus someone with 5 years’ experience. But the same is not true for 15 years versus 20 years’ experience. At that stage, it becomes about quality of experience, rather than the number of years spent doing a particular role.
- Employers who still use university “milk rounds” to recruit employees are discriminating against older workers
Many employers use university “milk rounds” or careers fairs as a major source for recruitment each year, often operating summer placements and graduate schemes to cream off the top graduate talent. However, because the average age of a graduate is relatively young, such practices could be deemed as discriminatory as it puts older workers at a disadvantage by excluding them from the selection process.
Employers would really only run into trouble if this were their only source of recruitment. By offering other avenues of recruitment such as open job adverts and accepting speculative applications throughout the year, not just following graduation, employers can avoid the risk of discrimination. They can also pay careful attention to the detail in job specifications and adverts, focusing on the skill set required rather than qualifications.
- Workers nearing ‘retirement age’ are less desirable and less likely to be recruited by employers
It’s a widely held belief that someone facing redundancy in their late 50s is automatically worse off than someone in their 30s. This is a product of the now defunct default retirement age which may have provided a barrier to moving jobs for people approaching the retirement age.
The retirement age has now been abolished but attitudes have not always kept pace with change.
In fact, in practice some companies actively recruit older workers. Take B&Q for example, who launched their age diversity project by staffing an entire store with workers over 50 (Personnel Today 24th October 2010). They have since become an authority on hiring older workers and actively promote the many business benefits of hiring a more mature workforce. And where they lead, others will follow.
Although discrimination may be an absolute term, it is evident is that there is reasonable wriggle room for employers to justify age discrimination if they have a credible reason for applying certain limits or restrictions in their policies.
Even then, it’s down to case law to explore the intricacies of this legislation and to provide some benchmarks for best practice going forward. And this will only come with time.