AGE DISCRIMINATION

New legislation on age discrimination comes into force on 1 October 2006. Whether you are a trainee, an assistant, an associate or a partner, the new regulations will almost certainly affect you.

The TSG appreciate that as a student or a trainee, you are likely to come across age discrimination in some way.  Age discrimination does not have the kind of status in society of other discriminations, for exmaple race or sex.  This means that it is more socially acceptable, and "natural" in society.  You may have experienced age discrimination already in your lile, but just accepted it as "normal".

Well - not any more.

From 1 October 2006, age discrimination became unlawful.  This was thanks to the Employment Equality (Age) Regulations 2006 ("the Regulations").

We aim to give you an overview of the way in which the Regulations work in practice, so that you can idenitfy if you are being discriminated against on the grounds of your age. 

OVERVIEW

The Regulations outlaw discrimination on the basis of actual or perceived age. It’s important to remember that this means all ages – not just old age.  Discriminating against someone because they are too young is just as likely to contravene the regulations. 

There are some exceptions. For example, direct discrimination may be justified if the employer can demonstrate that it is necessary for a person of a particular age to be employed.  Additionally, if it can be shown that certain treatment is a reasonable way of achieving a legitimate aim (known as ‘objective justification’), the Regulations may be overruled.  For example, a firm may be able to show that its business planning needs mean it must have a spread of ages amongst partners.  However, employers will need real evidence to support any claim of objective justification. Simply stating that it achieves a legitimate aim will not be enough and each case must be considered on its individual merit. 

Like other discrimination legislation, the Regulations cover direct and indirect discrimination, harassment and victimisation. They apply to everyone in employment or vocational training – including contract and agency workers, office holders, barristers and partners. They also
provide protection to prospective and former employees, as well as to existing employees.

COMMENTARY

By outlawing both direct and indirect age related discrimination, the regulations will attempt to stop such stereotypes. After all, there is little justification in assuming that workers in their 40s and 50s are ‘past it’ or ‘over the hill’, just as those in their early 20s might resent assumptions that they are ‘fickle’ or ‘immature’. This is particularly pertinent in our ageing society; by 2025, the number of people in Britain over the age of 60 will outnumber those under 25 for the first time. 

However, the regulations are controversial. One of the biggest challenges posed by the legislation is how it will work in practice. Traditional recruiting methods have heavily relied upon ‘key words’ in order to seek out the right applicants. However, now that age discrimination will be outlawed, recruiters will have to be far more careful about how they advertise jobs. Ireland has had age discrimination legislation since 1999, and employers have lost cases where they have advertised for ‘a young and dynamic professional’ or ‘young, confident, enthusiastic’ salespeople on the grounds of discrimination. How trainee solicitors will be recruited in future will be a case in point.

At the other end of the spectrum, employers will need to plan carefully for those workers who are reaching normal retirement age. Retirement will, from October 2006, be added as a sixth potentially fair reason for dismissal in unfair dismissal claims, the others being conduct, capability, redundancy, breach of a legal enactment and some other substantial reason. There are also complicated retirement procedures which employers will have to put in place in order not to fall foul of the regulations, giving workers the right to request to work beyond normal retirement age. How the retirement provisions will work in practice is a moot point; legal practitioners are likely to look to case law for guidance due to some ambiguity in the regulations themselves.

Whatever happens, it is likely that age discrimination laws will rapidly become a major source of discrimination claims in the workplace. The USA introduced age discrimination legislation in 1967.  In 2005 alone, the Federal Equal Employment Opportunity Commission received 16,585 charges of age discrimination, collected nearly $78 million in settlements involving age-discrimination charges and resolved 14,076 similar claims.

And whilst age claims in the USA were traditionally brought by older workers, signs indicate that a young, disenchanted workforce are increasingly likely to claim they have been discriminated against on grounds of their age. Factors in the US behind this trend include a changing economy, common misconceptions of younger workers and the end of the dot-com boom.

In the UK meanwhile, the regulations place no limit on the amount of potential compensation for a successful age claim, so those (be they old or young) who feel they have been unfairly treated on the grounds of their age, or perceived age, may be galvanised to take action. The full impact of the age discrimination legislation remains to be seen, but there is little doubt that it will change the way employees are treated in the workplace - from recruitment through to retirement.

What the new regulations mean in practice

Employers will have to adopt age positive practices.  They will no longer be able to recruit, train, promote or retire people on the basis of age, unless it can be objectively justified. Skills, experience and ability to do the job, assessed against agreed criteria, are what’s important, not someone’s age.  This will require a major cultural change, throughout the profession!

The Regulations are likely to have a far-reaching effect on how solicitors manage their firms and on the rights of employees and partners. It has been suggested that more decisions are made on the basis of age than on gender, race, religion, disability or sexual orientation combined. 

Training

Law firms will need to check that training budgets are not allocated to departments with predominantly older or younger staff.  They will need to ensure that for trainee solicitors support is not biased towards younger trainees.  Firms need to be aware that existing, older staff may wish to undertake training.

Firms must ensure that attendance criteria for training courses and opportunities are age-neutral and monitor take up from different age groups.  To do this, they will need to consider how training is provided – for example, does it prejudice some employees if only web-based training is used?

Promotion

Promotion criteria should be age-neutral.  They should focus on competency and skills, rather than factors such as length of service or the age of the individual.  As with recruitment, experience may be a criterion but it must be relevant to that particular job. Firms should not exclude those with too little, or too much, experience if they possess all the other relevant skills.  Unless it can be justified, firms should remove artificial barriers to promotion such as maximum and minimum ages.

Objective appraisal and performance reviews should be used instead of relying on instinct.  Potential promotion candidates should have equal access to relevant training, regardless of age. All age groups should be encouraged to apply for all posts, even if historically they have gone to older or younger candidates.  The ages of those applying for, and receiving, promotion should be monitored.

Recruitment

Recruitment materials should avoid references to age or age ranges unless the employer can show objectively that it is appropriate and necessary to apply an age criterion to a job.  Care will need to be taken with the wording of advertisements.  Words that could imply age, such as ‘mature’, youthful’, ‘modern’, ‘senior’, ‘recent graduate’ or even ‘experienced’ will need to be avoided.

If your firm uses a graduate scheme, they will need to avoid criteria such as ‘under 25’.  Plus, they will have to consider where they place their job advertisements (i.e. College of Law noticeboards only?) – could they be seen as targeting one age group only? 

Although it will not be unlawful for firms to ask for date of birth on application forms, they do need to consider why it is necessary. It is best practice to include it in their diversity monitoring form alongside other equality information instead.  Firms will need to be careful that other age-related factors have not been used, such as schooling or amount of postqualification experience, by using non age-based recruitment criteria.

Benefits

A ‘five-year exemption’ clause means that benefits based on a length of service requirement of five years or less can continue. Beyond that, length of service can be rewarded provided the employer can show an objective justification, for example, that there is an advantage from rewarding loyalty, encouraging motivation or recognising experience.  All employees, whatever their age, will be entitled to the same level of benefits, even if providing that benefit to one age group incurs a greater cost for the employer.  So if an employer chooses to allow employees to work beyond the retirement age of 65, the fact that a benefit such as permanent health cover becomes more expensive will not justify the employer in not providing that cover if they still provide it to younger employees.

Partnerships

Importantly, partnerships should not be offered, refused or terminated on the basis of length of service. Age and length of post-qualification experience should also be avoided – firms should use expertise, skills and competencies instead.  If your firm has lockstep arrangements for partnership progression, they should be moving towards a merit-based system. This addresses the problem of older, underperforming partners who refuse to retire and who might be able to make a claim if an attempt were made to remove them purely on the basis of age. 

Retirement

Under the new regulations the national default retirement age is 65. Compulsory retirement before 65 is unlawful, unless the employer can show that there is a legitimate business reason for it.  In addition, the employee has the right to request to work beyond 65, and the employer must inform the employee of this right. If a request is made, the employer must consider it. Having considered it, the employer is free to decide whether to grant it or not.  Criteria for extending the retirement age beyond 65 will need to be consistent to avoid  accusations that retirement is used selectively as a tool for dismissal.

Instructing Counsel

As with other anti-discrimination legislation, the age regulations contain provisions which make it unlawful to discriminate against a barrister or advocate in relation to the ‘giving, withholding or acceptance of instructions’ or to subject a barrister to detriment or harassment.  In practice this means that firms should instruct counsel on the basis of skill and capability, and not on age or length of call. If a client specifically requests a barrister of a particular age or length of call, then firms must not agree unless there are justifiable reasons for doing so.  If the client will not withdraw that part of their instructions, the firm should cease representing that client.