Employers have become much better attuned to identifying the risks of sex, race and disability discrimination. However, in my experience, that is less the case with age discrimination. This is especially so with indirect age discrimination, where an employer applies a requirement across all of its staff but that requirement impacts more harshly on staff of a particular age, whether young or old.
ACAS have recently published new guidance on age discrimination. That guidance provides a helpful overview of the basic principles of age discrimination and the risks that arise within the workplace. It describes the various types of age discrimination and, in doing so, identifies some particular problem areas which all employers should be on the look out for.
Who is protected?
The guidance makes the point that protection exists for both young and old who might be disadvantaged because of their age and that protection exists throughout the age spectrum. A 50 year old can complain that they are disadvantaged as against a 40 year old just as much as an 18 year old or a 70 year old can rely on the legislation.
Stereotyping probably exists to a greater degree in relation to the protected characteristic of age than any other protected characteristic. The guidance encourages employers to judge on performance, rather than assumptions, to mix age groups when creating teams or projects, and to seek and value different outlooks and ideas.
Qualifications and Criteria
Sometimes particular qualifications and criteria, such as “Experience required in …” can have a discriminatory impact. Whilst these are capable of being justified and are not necessarily therefore unlawful, employers should ensure that all criteria are specific and, most importantly, relevant to the particular job.
Social media has an increasing importance within the workplace. Employers should recognise different age groups will participate in social media in different ways and should be wary of the risks of disadvantaging particular age groups.
Training and Development
Employers should not assume that training is relevant only to the young. Employers should make sure that training is accessible to all. Similarly career development is not the preserve of the young. An employer should not stop discussing career ambitions simply on the basis that an employee is older.
Employers should consider carefully whether remuneration arrangements that are based on experience or length of service are discriminatory. Again, these may be capable of being justified, but it is important that such arrangements should be relevant and, where an employer is seeking to promote an aim such as encouraging loyalty, it is important that an employer should consider how effective and proportionate the approach is.
One of the most challenging aspects for an employer is knowing how to approach the thorny issue of retirement. Besides the obvious advice not to pressurise or bully an employee into retiring, the guidance suggests employers should openly discuss with all employees, regardless of age, their work plans in the short, medium and long term.
Employers should be consistent in taking action to manage performance. Aside from avoiding stereotypical assumptions regarding the impact of age on performance, the guidance encourages employers to give all employees, regardless of age, the same opportunities to improve their performance.
The guidance with the supporting notes on employers’ obligations and myths surrounding age discrimination can be found at http://www.acas.org.uk/index.aspx?articleid=1841.