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Thu 15th January 2009
Employment Law Update - January 2009
Age Discrimination – Have you reviewed your practices?
Since the introduction of the Employment Equality (Age) Regulations 2006 ("Age Regulations") much of the focus has surrounded on employers' ability to dismiss an employee by reason of retirement. The UK currently has a default retirement age of 65 and under the Age Regulations, employers, provided that they follow a statutory procedure in notifying the employee, can dismiss an employee by reason of retirement without fear of falling short of Age Discrimination legislation. However, it is important for employers to realise that the Age Regulations cover far more than just Retirement, as many employers are beginning to realise to their detriment!
Recruitment and Promotion
What many employers do not realise is that the Age Regulations apply to former, actual, and even potential employees, workers, partners, contract workers and many more.
Have you reviewed the wording that you use in advertising available positions, the information that you request, and the manner in which you conduct the interview?
Advertisements including "youthful enthusiasm", "drive and motivation", and "post would suit someone within their first five years of qualification" have all been found to either constitute direct or indirect age discrimination.
Employers who have tried to establish reasons for not selecting candidates based on criteria required for the post have fallen short of the Age Regulations. An employer who's assessment of potential candidates fell broadly within the heading of 'team-fit', under which they took account of criteria such as 'adaptability', 'flexibility', 'keenness', and 'informal style' were found to be discriminating on grounds of age because there is a common generalisation that older candidates are less likely to possess the aforementioned qualities as apposed to younger ones.
Do you ask for candidates' age in applications? ACAS and BERR advise that it is best practice to only ask this question under an equal opportunities monitoring form. While not evidence in itself, an inference of potential age discrimination may be drawn from the question if asked.
You also need to consider the way in which existing employees are treated when they make applications for promotion. As above, you need to be able to establish objective reasons for your decisions, that can not be seen as related to the candidate's age.
Harassment and Victimisation
Do you continuously monitor, update, and train your staff on your internal rules and procedures, on equal opportunities, and the actions against staff that fail to follow your organisation's requirements under these policies? The acts and treatment of other staff, contractors, clients, and suppliers by your employees can also result in age discrimination claims.
Many people already understand the potential hazard of emails but the following is a good example of potential harassment under age discrimination. The Employment Tribunal has found that an email sent by an employee to a number of colleagues, one being 54 years old, which was entitled "Perks of being over 50" and included: 'kidnappers are not very interested in you', 'you can live without sex but not your glasses', and 'things you buy now won't wear out' constituted unwanted conduct that had the effect of violating the individuals dignity.
An employer should attempt to keep all their employees up to date with policies governing conduct. In light of the above example, not only should the employer have informed all employees of the IT user policy and email policy, but also the Equal Opportunities Policy, and provided training to staff on these policies and the content in order that they could show that they had undertaken all steps in their power to prevent such an act occurring.
Is the credit crunch hitting your business? Have you considered implementing redundancies? Need advice?
We at Park Woodfine Heald Mellows have been advising employers on how to safely manage redundancies. During this difficult time, it is best to understand the legal procedure in order to avoid potential unfair dismissal claims which can be costly and time consuming. Due to the demand of our previous seminar held in Bedford, we are holding another seminar in Northampton. If you would like further information on how to protect your business in the current climate, we are holding the following Employment Law Training Seminar:
"How to resist Employment Tribunal claims during the economic downturn."
VENUE: Park Woodfine Heald Mellows LLP
16 Castilian St, Northampton, NN1 1JX
DATE: 17th of February 2009 (2:00pm – 4:30pm)
Please email your confirmation to: arana@pwhmllp.com
or call 01234 312905.
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