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Age Discrimination Law Now In Force In the UK
What employers & recruiters should know.

by Chris de Morsella

The Employment Equality (Age) Regulations that became law on October 1st,

represents the most important piece of anti-discrimination legislation to be enacted in the UK in many years. This legislation is the result of the government's obligation to adopt the European Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. Article 25 of this act states that "The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce."

It goes onto acknowledge that "differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labor market and vocational training objectives and discrimination, which must be prohibited.

Summary of The Provisions of The Employment Equality (Age) Regulations 2006

  • It has broad provisions banning discrimination in recruitment of workers of any age (young or old). This is a significant difference for example from the Age Discrimination in Employment Act enacted in 1967 in the US that affords legal protection only to workers over the age of 40 years.
  • It outlaws age-related harassment in the workplace in a similar manner to existing legislation in place against sexual harassment .
  • It outlaws benefits that are age-related, including training programs that have provisions, which discriminate on the basis of age.
  • It sets a national default retirement age of 65 with the consequence of making compulsory retirement below age 65 unlawful -- unless a lower age can be objectively justified.
  • It allows workers who are approaching the default retirement age of 65 (or any other justified retirement age) the "right to request" continued employment beyond this age. While an employer is legally obligated to take such a request under consideration they are not under any legal obligation to grant the request.
  • It requires employers to give at least 6 months advance notice of an approaching planned retirement date. Workers who are notified maintain the right to request continued employment beyond this date.

Implications for Employers and Recruiting Firms

In order to fulfill the new obligations imposed by the new law, employers should thoroughly review their employment policies to make sure that all their policies and procedures are in line with the new requirements and that they are not engaging in direct or indirect discrimination on the grounds of age in the areas of recruitment, promotion and training. Even unintentional age discrimination could expose a company to risk under the new legislation -- for example recruitment advertising that portrays images showing only younger people.

A pro-active approach is advisable. Employers should seek advice where necessary and make a good faith effort to implement recommendations. Doing so will help protect an employer against any possible accusations made at a later date.

Perhaps the most immediate and clearest impact on employers will be the standardization of retirement age at 65 years. For example, companies that currently have a standard 60 year retirement will have to adjust their policies especially if their pension plans reflect this with a formal payout age of 60 years.

The new regulations are also a reflection and recognition of the reality of living in an ageing society with an ageing workforce. Because a rapidly increasing segment of the total population in mature industrial nations such as the UK will be in the upper age brackets, it is vital for the economy to remove the barriers to employment and self-employment for the over-50 segment of the workforce. Currently 1 out of 3 people who are out of work and over the age of 50 will never work again. Clearly this has to change not only as a matter of equity and fairness to older workers, but also in order to prevent a serious demographic time bomb from exploding if the problems of marginalization of older workers is left unaddressed.

Things Employers Can Do to Attract Mature Workers

Studies have shown, that amongst older workers there is a high demand for flexible working options, as well as a high level of satisfaction for those who are employed in this way. Offering flexible working arrangements is an excellent way for employers to retain seasoned talent as well as increase the overall flexibility of their organizations to respond to changing economic conditions. A few of the types of flexible employment (or business) arrangements that employers as well as older workers can benefit from are:

  1. Options for Part-Time Employment or Consulting - Offering part time employment or alternatively a part time consulting arrangement is an excellent way for companies to retain highly skilled older workers as well as to help with long-term smooth transitions to skilled workers or professionals being groomed to take over the responsibilities of the older worker who is continuing on a part time basis. This option is very popular with older workers and many would like to work in this way leaving them more time for family or other activities. Problems that can arise when offering part-time employment are usually related to issues with pay and also pension (and other benefits).
  2. Short Term Contract or Consulting Positions - This is an excellent way for companies to hold on to or find talent especially in fields such as engineering that have many specific discrete tasks that are amenable to being fulfilled on a contract basis. In the USA, for example, many IT positions are already filled in this manner as it affords a high degree of flexibility to the employer as well as to the consultant. Older workers are well suited to these kinds of economic & business relationships as they usually have a long track record and a proven work ethic.
  3. Seasonal Employment - Seasonal employment is already widespread in the hospitality & leisure sectors as well as in retail sector (for the annual holiday rush for example). Older workers can bring stability and experience to seasonal employment situations that younger casual workers may be lacking in.
  4. Telecommuting - Work from Home - Many professionals can perform at least some of their work duties while telecommuting or working from home. For example technical writers, software engineers, sales professionals, graphic artists can often work remotely. Employees, especially working mothers and older workers often place a high value on this benefit as it allows them to keep working while also being closer to their families. On the other hand employers are often reluctant to offer it because they fear the results of a loss of on-site supervision.
  5. Setting up and Incubating Outsource Relationships - In some cases, employers may benefit from developing outsourcing arrangements with older workers who want to set up their own businesses or begin a second career.

Age Discrimination is a Real Problem

Age discrimination is real and it affects all too many people. It has recently been legally recognized as deserving of special legislation to remedy the existing inequities and this has served to make this a topical issue in the UK, EC and elsewhere. Australia, Denmark, Ireland the USA, the EC (Directive 2000/78/EC) and now the UK all have legislation that addresses age discrimination. But laws alone will not change often deeply rooted discriminatory practices and attitudes. It will take a concerted and largely voluntary action by employers and society at large to change common perceptions and prejudices.

Why Make Changes? Because it's Good for Business

Why should any employer really address age discrimination within their organizations? Why should they do more than the minimum in order to avoid legal action?

  • Because at least for employers in the UK (plus other countries that have enacted age discrimination legislation) it is the law. A proactive approach can head off expensive legal headaches.
  • It is morally the right thing to do. Ultimately discrimination comes back to hurt everyone.
  • The fastest growing market segment in the richest markets in the world is comprised of older people. Making a well-publicized effort to be fair to mature employees will have a positive effect on a company's image, especially in this growing market segment.
  • Older people are healthier and more active than ever. Assumptions inherited from the past no longer apply. Mature workers can be an invaluable mix in a corporation's culture. They have a lot to bring to the table.

These are all compelling reasons for employers to be aggressive in tackling the age old issue of age discrimination. In the final analysis it is good for business; it is good for the bottom line.

About the Author: Chris de Morsella is Chief Operating Officer of The Multicultural Advantage, a web site that provides resources designed to help professionals from diverse backgrounds succeed in the workplace and employers increase their diversity recruiting effectiveness. Chris is our global diversity and immigration commentator. Though his roots are in technology leadership, working on key projects within companies like Microsoft, Associated Press and Thompson Publishing, his work has been focused on diversity staffing issues for over five years. Having worked in the United States, Europe, Asia and Latin America and being able to speak English, Italian and Spanish gives him some interesting perspectives on global diversity issues.

Chris de Morsella