Are you Experienced?
17 July 2006 Richard Smith
Laws coming into force in October 2006 present discrimination claim risks to employers who target young or old workers. Richard Smith, employment services director of Croner, explains why companies must be ready for this change.
Age discrimination is soon to be as unlawful as other types of discrimination, such as race, religion, disability and sex. But the new law, due to come in to force on 1 October, 2006, is causing some confusion among employers, many of whom think that by boosting their quota of older workers, they can demonstrate they are not an ageist organisation.
However, just as recruiting more men or women is not a simple solution to defend against sex discrimination, employers cannot comply with age legislation simply by actively recruiting specific types of workers (i.e. older or younger workers).
In fact, doing so could have the opposite effect and actually be in breach of the new law, putting the employer at risk of age discrimination claims from employees in other age groups.
Under the Employment Equality (Age) Regulations 2006, businesses may only target a certain age group if they are under-represented in the workforce, and even then they must still be careful not to exclude other groups.
Furthermore, an employer's actions leading up to the October deadline can be used as evidence in court once the legislation is in place. So the message to employers is to get to grips with their requirements now.
It's not surprising though that many businesses are still unsure of their obligations, despite much coverage of the issue in the media. A recent illustration of this is the release of new research from the Chartered Institute of Personnel and Development (CIPD).
This research found that 70% of UK employers are actively seeking to recruit the over 55s. This 'age-diverse' behaviour was endorsed by the CIPD, which reported that such practice is enabling organisations to 'tap into the relatively unused talent pool of older workers'.
We must recognise the significant, and increasing, contribution that workers over the age of 55 are making to the UK workforce, and the CIPD research was successful in highlighting this.
However, it could also convince employers that actively recruiting from this age group is an important factor in complying with the new legislation, when in fact the law states that recruiting from any age group, unless it is under-represented, could land them in court.
Findings of the CIPD study also revealed that employers are actively targeting young people, with 74% of organisations trying to recruit 16-24 year olds. This could also be putting them at risk from claims, as younger workers are equally protected from age discrimination under the new law.
CAN'T DO RIGHT FOR DOING WRONG?
With ageism such an integral part of our culture, it could seem logical to employers that any action taken to become more age-friendly, such as actively recruiting older workers, would help them to comply.
Similarly, employers that already employ a good proportion of older workers may not think they need to take any action at all, indicated by a recent Croner study of 20 in-depth interviews with HR professionals on age discrimination.
One respondent was reported to have said: "The legislation won't affect us directly as we have a lot of workers over the age of 60."
Employers could understandably feel that by trying to do right by employees of all ages, they are actually doing wrong by the law.
The danger is that they don't realise the significance of the legislation, which is on a par with and carries similar penalties to other forms of workplace discrimination - as such, employers need to spend far more time understanding it and meeting its requirements.
Croner's research also showed that most employers rely on the press for their knowledge and understanding of the new law. This is why it is so important to give a realistic legal perspective to the widely reported CIPD research, and alert businesses so that they can take appropriate action.
Today's 'best practice' organisations are age positive and recognise the merits of all staff, no matter what their age. Many may also choose to optionally extend their company retirement age, or offer employees employment beyond the statutory retirement age of 65.
Such organisations need to attract both younger and older workers, and may indeed specifically target age groups that are under-represented in their workforce.
However age legislation will make it unlawful to stipulate specific ages or years of experience in job advertisements. Even language such as 'mature', 'experienced' and 'dynamic', should be used with caution, as they can have connotations of specific age groups.
It's easy to see then how complying with the new law is going to be balancing act for employers who want to be positive about age and attract older or younger workers, but who need to ensure that in so doing they don't discriminate or portray a discriminatory attitude in their recruitment methods.
To create an age-positive organisation, employers should:
- Audit policies and procedures to ensure they encourage fair and non-discriminatory treatment, and communicate them to employees
- Train managers on any potential issues they face and how to deal with those issues
- Take prompt action if issues are raised
- Give clear feedback on inappropriate behaviour
- Monitor statistics on the age profile in your workforce
- Talk to / survey all employees to identify common areas of concern
- Provide role models for positive, inclusive attitudes and behaviour
- Explore behaviours / values at the recruitment stage
- Create a 'life-long learning' culture throughout the organisation
- Introduce team-building / buddying / mentoring schemes