Many employers think they have solid policies and processes in order to avoid the complex issue of age discrimination. However, it is still necessary to review these on a regular basis.
Our employment and pensions teams have put together ten top tips for age-aware employers - which should be all employers - considering things you may know, things you may not and developing trends to be aware of.
1. Job ads - watch your words
Checking that the wording of your job advertisements do not discriminate against people of a particular age or age bracket is important. Ignoring this could result in you receiving a claim from an unsuccessful job applicant, who is protected from age discrimination under the legislation. Using phrases such as 'young & dynamic' is a definite "no no". You should avoid using age, a specific qualification or period of experience as recruitment criteria, unless you can show that it is really necessary for the person to be able to do the job. Read job adverts with a critical eye and make sure any agents you use do as well.
2.Be careful what you ask
Focus on making sure that a candidate's date of birth is removed from their application form, and be aware of questions which could easily mark an employee's age (e.g. questions on schooling or employment history with dates). Make sure interviewers are aware of the types of questions that they should not ask - this applies to age just as much as it applies to the other characteristics protected by the Equality Act 2010.
3. Employee benefits
Be wary of offering benefits which, despite being offered to all employees, disadvantage people of a particular age. There are certain exemptions when it comes to offering benefits linked to length of service. Where the person receiving the beneficial treatment has a length of service in excess of five years, the provision of the benefit, facility or service will only be lawful if it fulfils a business need, such as rewarding a higher level of experience, rewarding loyalty or increasing employee motivation.
4. Ensuring insurance stacks up
There is a statutory exemption that applies to having a cut-off age for insured benefits, but employers should regularly review any insured benefits they provide to ensure that they either: (a) fall clearly within the statutory exemption, or; (b) can be objectively justified to the extent that there are any provisions that apply to some ages and not others. Failure to do this leaves employers and potentially trustees (where insurance is provided through a pension scheme or life assurance arrangement) open to challenge.
5. Policies - put it in writing
Ensure that your policies are compliant and do not discriminate, in particular your recruitment and employee benefits policies. Provide your staff with access to copies of your equal opportunities and harassment policies. These should include examples of the types of behaviour that can be age discriminatory and the consequences for employees of discriminating or harassing individuals on the basis of their age.
6. Train to retain
- All staff, particularly managers, should be trained on avoiding age discrimination in the workplace, focussing in particular on key areas such as the recruitment process, promotion, and dismissals.
- Training and refreshers on systems, processes and the 'tools of the trade' should be available for all, to avoid people not being up-to-speed on how new technologies and processes work.
7. Banning banter?
Banning banter would be an extreme measure, but all staff should be aware of the types of behaviour that constitute age discrimination. Be clear that age discriminatory comments against young or old employees are not tolerated and that disciplinary action could be taken if employees disregard this.
8. Flexible working for all?
There has been a large increase in the number of flexible working requests over the past few years, and the right to request has been expanded. Do you have a policy that provides for this? Remember that this policy must be generic and not aimed at specific groups - it should be open to old and young without any assumptions or judgements being made about why people want to take it.
9. Promote on talent, not age
Age shouldn't be a factor when considering promoting individuals; it should be done on the basis of talent, merit and business need. There are certain exceptions where age may be taken into account i.e. if the age requirement is a genuine occupational requirement or is objectively justified, but the latter can be hard to show in practice.
10. Retiring from retirement
Although the traditional concept of 'retirement' is dead in the water for many employers, now the statutory default retirement age has gone, employers of choice can still help employees 'train for their retirement'.
Support provided might include access to guidance on financial planning, pension planning and generally thinking about life after work! Employers need to ensure that any such 'pre-retirement planning' is not in itself discriminatory though, and avoid targeting employees at a particular age on the assumption they are gearing up to leave the business.
Tied into this, employers should also think carefully about succession planning to avoid being caught off-guard when individuals with key skills or knowledge do depart the business. Mentoring and "skill-spreading" will all feed into this.
Are you #AllAboutAge?
We have strong expertise in the area of age discrimination, regularly advising, writing and training on the subject. We have a core "ALL ABOUT AGE" team, which analyses the latest case law and remains ahead of the curve in terms of developments, advising and updating employers accordingly.