The Age Discrimination Regulations prohibit age discrimination against all ages – not just the old! Discriminating against someone because they are too young is just as likely to contravene the Regulations.
We address here some of the areas that employers will need to address in order to ensure that their practices are lawful.
Performance management
Progress reviews and performance management are important to both employers and employees.
Any perception on a worker’s part that effective performance management is being denied him is likely to be perceived as a substantial detriment.
A failure to manage or properly review the performance of older workers, could easily lead to a claim of age discrimination.
Further, taking account of decline in performance that is the result of ageing may constitute age discrimination.
Employers should give consideration to ways in which age-related factors, such as physical and mental ability, could affect productivity and efficiency.
Reviews and Appraisals
When conducting performance reviews, employers must be careful to ensure that employees are judged solely on their individual merits, regardless of age.
Employers should certainly avoid comments such as ‘shows remarkable maturity for their age’ or ‘remains capable and enthusiastic despite many years with the company’. These phrases suggest underlying discriminatory attitudes towards certain age groups.
Promotion
Opportunities for promotion should be advertised to the whole workforce, regardless of age or length of service.
You should avoid using age-related criteria, such as a minimum number of years’ experience. Instead, you should consider whether selection can be made on the basis of an individual assessment of the relevant required skills.
Access to Training
Training should be provided to all workers, regardless of age. If you have a policy of not providing training to workers close to retirement age, this will need to stop.
The Regulations do however permit you to take ‘positive action’ in providing older employees with training that compensates for disadvantages linked to age. For example, it may be acceptable to limit access to a computer course to those over 60 because they have had less exposure to such training in the past.
Pay issues
Internal pay structures may have discriminatory elements. For example, using experience as a factor for determining an employee’s pay has the potential to constitute indirect age discrimination.
Instead, you should make an assessment of the individual’s particular skills and work carried out.
There are however exceptions. For example, it will be acceptable to award benefits on the basis of an employee’s length of service, provided there is a good business reason for doing so.
This would include encouraging loyalty or rewarding experience.
The national minimum wage will continue to be set at different levels, depending on the age of the worker.
Please feel free to contact one of our solicitors if you require specific advice on Age Discrimination. |
