A year ago, the French government found to its cost that workers refused to be discriminated against on the grounds of age. The issue was a proposed contract of employment for young or first-time workers that would have given them fewer rights, particularly in respect of dismissals during the first two years of employment. Widespread protest forced a climb-down.
This year sees the arrival of diverse deadlines around Europe that compel governments to implement EU directives on age. In the UK, for example, the new Age Discrimination Act adds to similar legislation on ethnicity, gender, disability, religion and belief. As with other forms of discrimination, compensation awards made at tribunals are potentially unlimited, unlike awards for proven unfair dismissal. Failure to follow statutory grievance procedures can, moreover, inflate successful claims by 50%.
Official estimates predict 8,000 new age-related claims a year. This is likely to prove an extremely conservative estimate and compares with sex (14,250, up 20%) and race (4,103 up 23%). On average, one tribunal claim on any issue is made every year per 250 employees and, in our experience, the arrival of each new piece of employment legislation brings with it a surge of new claims. Over the past 12 months, we have received a phenomenal number of calls to our legal helplines from employers concerned over the problems they face implementing changes.
As a minimum, we can expect one in every 10 tribunal claims to be for an uncapped compensation award. Additionally, such claims are likely to be twinned with another grievance, such as unfair dismissal. Currently, each case at tribunal averages 1.8 complaints. The cost of defending such claims over a period usually lasting around one week is escalating quickly. Single issue cases normally require two days' tribunal time, but are becoming a rarity.
On the agenda
The new laws put age on the agenda for the first time. The employer is liable for the action of its employees, as well as for its own discriminatory procedures. If employers are to avoid trouble, good guidelines have to be laid down to ensure staff know what constitutes discriminatory practice.
In most situations, it is unlawful to treat people differently. Employers may be able to justify such treatment by reference to specific aims if appropriate and necessary in the particular circumstances ('objective justification'). Justification will not always be necessary: the most obvious instance being where an employee aged 65 or over is required to retire. However, in practice there are few opportunities to discriminate positively.
Workers and job-seekers now have the right not to be discriminated against, directly or indirectly, or be harassed or victimised on the grounds of age. Harassment means unwanted conduct that has the purpose or effect of either violating personal dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, while victimisation is the less favourable treatment of someone as a consequence of something done by that person in connection with the age laws, for example by attempting to assert their rights.
Direct discrimination relates to a decision reached on the basis of a person's actual or perceived age. Indirect discrimination occurs in a situation in which a policy or practice, generally applicable to everyone, causes disadvantage to a certain age group, unless there are particular and justifiable reasons for it.
For example, requiring applicants to pass a health test for recruitment or promotion would not constitute direct age discrimination. However, it might be indirect age discrimination if people of certain ages were less likely to pass than others. In this case, the employer would have to justify itself: for example, a health test would be justifiable if it was needed to indicate whether someone was capable of doing the job.
Beware the unexpected
From the moment an employer first thinks about recruiting new staff until they leave their service, discrimination may be alleged.
Inevitably, the new legislation is complex and will be tested in the courts. It could even apply to minimum wages above the official levels. If 16-17 year olds are paid £10 an hour, 18-21 year olds £12, and over 21s £14 for the same job, an objective justification will have to be proved.
While the law clearly spells the death knell for many of those cliched recruitment phrases ('young, dynamic team', 'graduate preferred' and so on), it is in some quite unexpected areas that the biggest problems are likely to surface. It will still be possible to actively recruit certain age groups to redress an imbalance in the overall workforce, but where there is no such need, targeting them indirectly by advertising in media most likely to be read by a certain age group, may be discriminatory. Few young people search for jobs in the classifieds of The Oldie, for example. There are many such pitfalls awaiting the unwary. Inadvertently specifying a level of qualification that no longer exists is one.
Generalised help is available on numerous business and government websites, while all those with legal expenses insurance will have access to free legal advice for their own particular circumstances.
Rhian Gait-Parker is a solicitor, and advice manager for DAS Legal Expenses Insurance Company Limited, www.das.co.uk
