Since age discrimination legislation came into force in 2006, there has been a steady increase in the number of cases. The law is now contained in the Equality Act 2010 and covers the entire life of the employment relationship.
With the government recently appointing the economist and policy expert Dr Ros Altmann CBE as business champion for older workers, it is crucial for businesses to understand the implications of the legislation. Courts and tribunals accept that evidence of age discrimination is quite rare and if a claimant can show that discrimination may have occurred, the burden of proof will switch to the employer to prove it did not discriminate. To that end, it is crucial that employers can show why they made a particular employment decisions in case they are forced to prove that they did not discriminate. Consistent, transparent and well-documented decision-making is, therefore, essential.
Below is a snap shot of some of the main points in avoiding age discrimination:
- Retirement – Setting a retirement age is unlawful unless it can be objectively justified (which may be difficult depending upon the circumstances).
- Managing performance – Ensure that the performance of all workers, whatever age and however senior, is managed in a transparent, consistent and well-documented way.
- Recruitment – Avoid indirectly discriminatory criteria or language in job and person specs.
- Benefits – Review your insured benefits and pension schemes to ensure they comply with the law and assess any increased costs of including older workers.
- Insured benefits – Stopping the provision of insured benefits when an employee reaches 65 is lawful, but it may not be lawful to continue and then stop them at an older age, e.g. 70.
- Redundancy – Enhanced schemes can only take age into account in a limited way. Check that yours complies.
- Training – Make sure that equal opportunities training covers ageism – and that recruiters and performance managers know the rules.
For further advice on policies which avoid age discrimination and advice on transparent decision making, contact Solve.