Though US laws already outlaw discrimination on age grounds against all over 40, current UK law doesn’t go there. Thanks to Brussels, however, that is set to change.
Do you want to know something scary?…..in the US any one over the age of 40 (yes I said 40!) is protected by disrimination laws on the grounds of their age.
But what about in England and Wales?
There is currently no legislation outlawing age discrimination in the UK. There is an Age Equality Code of Practice but compliance with it is not compulsory and consequently many employers ignore it.
Isn't there some European legislation on age discrimination?
Yes. The UK government is obliged, under the EC Equal Treatment Framework Directive (2000/78) to introduce legislation prohibiting age discrimination in employment by December 2006. The government has indicated that it intends to take the full time allowed by the directive.
What will the legislation say?
The legislation is likely to be similar to sex and race discrimination legislation. Compensation will be unlimited. However, employers will have a defence where an age requirement is a genuine occupational requirement. For example, it might be necessary to use a teenage model for the cover of a teenage magazine.
Why is it being introduced?
The age discrimination legislation is being introduced partly to complete the 'rights revolution' in the workplace. However, it is not entirely altruistic. The government is keen to encourage older people to remain at work. It is concerned that they will not have sufficient income upon retirement and this is one way of dealing with this. It also wishes to make the workplace a more diverse place, where people can call upon the greater experience of older people. Finally, it wants to ensure that there are enough employees to go around. As the birth rate continues to drop, it is estimated that in 2020, more than half the population will be aged 50 or older. If all took early retirement, as is increasingly the trend, the workforce will be too small.
Will the European legislation only protect older workers?
No. Although US age discrimination only protects workers over the age of 40, the new European laws will protect people of every age. Young people are often discriminated against based on assumptions that they have limited ability and this is as much against principles of age discrimination as assumptions about older people.
What if an older employee just is not up to the job?
The legislation specifically states that it does not require the recruitment, maintenance in employment or training of an individual who is not competent, capable and available to perform the job. There is nothing to prevent an employer from establishing rigorous medical testing or physical fitness standards, however these standards will have to be justified and applied to all employees regardless of age.
What practical implications is the age discrimination legislation likely to have?
It is likely to mean that employers will no longer be able to require job applicants to state their date of birth on an application form. Recruitment advertisements should be age neutral in that they should not state that the ideal candidate would be 'young' or even perhaps, 'energetic'. Maximum, or minimum recruitment ages, and desired age ranges for candidates, will no longer be justifiable in most cases. All in all, employers will need to audit and review all their practices to ensure that they do not, either directly or indirectly, discriminate against workers of any age. This is of course best practice in any event but from 1 December 2006, any failure to do so will prove extremely costly. David Brent, eat yout heart out .