The Employment Equality (Age) Regulations 2006 will add age to the grounds on which employers are already prohibited from discriminating: sex, race, nationality, disability, sexual orientation and religion or belief.
Employment lawyer James Davies, of Lewis Silkin LLP, told the BBC’s recent Panorama programme ‘Must have own teeth’: “Employers will be prohibited from taking age into account in deciding who to offer a job to unless the employer can justify doing so. Employers will need to be careful of giving an impression that age is relevant as they could be forced to prove that they did not discriminate.”
Davies says a job advertisement that refers to an “energetic, fun and dynamic” candidate could be used to support a claim that the company was after a younger person. Similarly, an advertisement for a “mature candidate with boardroom presence” could suggest an older person was being sought.
It is still socially acceptable to make an issue of age in a way unimaginable for, say, race or religion. In the recent Liberal Democrat leadership battle, for example, 65-year-old Sir Menzies Campbell’s age came under considerable scrutiny.
However, the working population is getting older. According to Directgov, the number of people aged under 50 will fall by 2% by 2016, while the number aged 50 to 69 will rise by 17%. The Forum of Private Business (FPB), which represents 25,000 small to medium businesses, warns that small firms are “sleep walking” into a legal minefield.
Nick Goulding, FPB chief executive, says: “Small businesses need to take time to audit their employment policies and review pension schemes, retirement policies and healthcare.”
Nick Jones, RMIF director of human resources, backs the aims of the legislation. But, he adds: “We do have concerns that the implementation of these proposals would have a disproportionate cost for our smaller company members. It will be necessary for companies to carefully review and take advice on their terms and conditions of employment.
“It is vital that the Government publishes clear, comprehensive guidelines. ACAS is due to publish guidelines at the end of April.”