From last month, age must be viewed in the same way as sex and race, in that it will be discriminatory to sack someone, or refuse promotion or employment because of their age.

Job advertisements looking to attract “young, enthusiastic assistants” or “mature, reliable workers” will be a thing of the past now the changes have come into force.

It’s surprising how often business decisions have previously been based on age or length of service, often as a convenient cut-off point, or as shorthand for manager’s expectations of people’s abilities according to their age group.

Most businesses will appreciate that they cannot directly discriminate against someone because of their age. In practice this means that an employer could not refuse to give someone a job, offer them promotion or specific training because of their age.

However, bosses are likely to be inadvertently caught out by the new law where indirect discrimination is concerned. This is in relation to the effect someone’s age could have on how they do their job. For example, not giving someone a job because they are unable to lift a particularly heavy load would possibly rule out more old than young people. However, an employer may be able to justify this requirement for staff lifting heavy timber in a sawmill or timber merchants.

Harassment prevention

One of the most controversial issues in the new legislation is the prevention of harassment on the grounds of age. This will mean an end to jokes about young people being wet behind the ears or old people being “crinkly”.

Some people may view these changes as nothing more than political correctness gone mad. However, it will now be possible for an employee who feels disgruntled at receiving such comments to sue their employer and gain compensation from this form of harassment.

The experience in the two countries that already have age discrimination prohibitions, Ireland and the US, is that the majority of cases are brought by young people, not old. The trap for employers will be refusing people employment due to lack of experience.

Employers must check with care their current policies and procedures – from recruitment to retirement – in training, promotion, pay and benefits and redundancy.

It will no longer be possible to expect someone to retire automatically when they reach 65. If you retire someone at 65 without taking the appropriate steps, the dismissal will be unfair and could leave you liable to pay compensation. In order to avoid this, you need to introduce a procedure for retirement, whereby those approaching retirement age receive a letter notifying them of their right to request to work on past retirement age.

Practical steps

There is no doubt that the new law requires a change in mindset, in the same way that race and sex discrimination required a change in mindset in the 1960s when they were introduced. However, there are practical steps that can be taken to avoid being a victim of the new legislation:

  • introduce a policy on equal opportunities if you do not already have one;
  • add age to any existing policies on equal opportunities as a criterion that is protected. This is a quick and inexpensive step to take and will go a long way to protecting you in the event of a claim;
  • introduce an automatic reminder on your HR system, if you have one, to flag up an employee’s impending retirement date and use a standard letter inviting them to apply to work on if they wish;
  • put a general notice out to staff reminding them of the changes in the law and asking them to be mindful of other people’s feelings when levelling humour at other staff. This may seem like an excessive step but, again, it will go a long way to protecting you in the event that a disgruntled employee attempts to sue you for injury to their delicate feelings.

The costs for business in continuing with poor practices are high; there is no ceiling on the penalties for unlawful discrimination on the grounds of age.

As usual, keep a detailed record of why you make decisions in relation to staff and, if you have a problem or you are unsure of a particular issue, take advice.

Darren Sherborne, a partner and head of employment law at Cheltenham-based BPE Solicitors, has recently been named as a leader in his field of law by Chambers UK, a client’s guide to the legal profession. He can be contacted on 01242 248 256 or e-mail darren.sherborne@bpe.co.uk.