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New Employment Law on Age-ism 2006-08-30

Posted by clype in Intolerance.

Job adverts in the not-to-distant future may look very different than they do today. Out may go stock-in-trade words like ‘youthful’, ‘energetic’ and even ‘experienced.’

The reason?

Such words and phrases could be considered ageist — leaving the employer open to legal action under new laws which come into force on 2006-10-01

‘Firms are going to have to take age out of the decision making process, whether it be recruitment, retention or training,’ says Mr.Stephen Morrall, a partner at law firm ‘Middleton Potts’.

‘One of the first places for a firm to change its practices is through its recruitment application form,’ he adds.

Careful language

On Monday, supermarket Asda said it planned to remove the requirement for job applicants to tell them their age.

Asda’s move goes beyond the terms of the new age rules but it could well be a sign of things to come.

‘Employers are going to have to be careful about the language they use in job adverts.

‘Of course, specifying an age will be out but other words which are associated with age such as energetic may also be problematic,’ Mr .Morrall says.

‘What may happen is that personnel departments will ask job applicants to fill out a separate form outlining their race and age, this form will be kept on file but not given to the person in the organisation making the decision on who to employ.

‘There are of course subtle ways that an employer can ascertain an applicant’s age.

‘Graduation year or whether they have GCSEs or O Levels instantly dates the applicant,’ Mr.Morrall adds.

Hard adjustment

Asda has a history of employing older workers. It already has 30 000 staff over the age of 50 and has called for an end to forced retirement at 65.

In other words, 2006-10-01 largely means ‘business-as-usual’ for Asda.

Other firms, however, may find life after 2006-10-01 harder to adjust to.

‘There are some firms which market themselves to a young or old audience.

‘It is kind of understandable that they employ people who reflect their customer base,’ says Mr.Matthew Knowles, a spokesman for ‘The Federation of Small Business’.

Mr.Knowles cites the example of a clothes shop targeted at teenage girls.

Physically fit

There is a get-out clause for some industries. Employers can still discriminate if they can show that being a certain age is a genuine occupational requirement.

Therefore, it may well be fine for the fire brigade to insist that firefighters are under 55 years old, because they have to be physically fit enough to pull people from burning buildings.

But this ‘get-out’ will be tightly policed;¬† it must objectively be shown that it is a genuine occupational requirement for a staff member be below — or above — a certain age.

For example, it won’t be possible for media firms to use the genuine occupational requirement clause to refuse employment or fail to promote people over the age of, say, 40.

Cuts both ways

Mr.Knowles is worried about the potential dangers for small businesses of over-zealous interpretation.

‘I really hope common sense prevails here and that firms are allowed to get used to the new rules.

‘Small firms by their nature do not have personnel departments to draw up job adverts. When they do advertise for people they often run the same advert time and again, couched in language they are use to.

‘What we don’t need are business owners being hauled in front of employment tribunals, which they cannot afford, all because they have made a genuine mistake,’ Mr.Knowles says.

And the potential for mistakes may be greater than at first glance, particularly as the age discrimination laws will cut both ways.

  • Not only will it be unlawful to discriminate because someone is too old, but also if they are too young.

But according to Ms.Margaret Thirlway, head of employment law at London-based ‘SA Law’, recruiting staff may not be as great an age discrimination minefield for firms as some groups have warned.

‘I can’t see there being many tribunal cases revolving around ageist recruiting practices,’ she says.

‘Think about it, the compensation for not getting a job through age discrimination is not going to be anything like as much as it would be for losing your job or having your career path blocked for the same reasons.’

‘The use of an age-loaded word like energetic may not itself lead to a tribunal, but when combined with a pattern of action, such as denying older workers training, then it might lead to a claim.’

Ms.Thirlway points to the experience of Ireland, which adopted age discrimination laws in the late 1990s.

‘Age lags behind sex and race as a reason for a tribunal claim. I can’t see it being any different over here.’



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