A huge culture change is required within workplaces to change age-old attitudes to age discrimination, was the overriding message at the Employment Lawyers Association (ELA) annual conference in May, when a distinguished panel debated whether employers would be prepared for the effects of the age discrimination legislation, which comes into force in next week.
The debate, chaired by Michael Rubenstein, co-editor of the Equal Opportunities Review and a leading expert on age discrimination, included views from Age Concern, the Employers Forum on Age, and a leading lawyer from Ireland, where age discrimination has been outlawed since 1999.
The panel warned employers that it was time to change their attitudes and employment policies, to embrace age diversity, or risk falling foul of the legislation when it comes into force and potentially very costly legal action.
Some of the key issues which employers need to consider include:
Harassment policies. These should be amended to prohibit ageist bullying and offensive jokes about age. The definition of harassment within the age discrimination legislation will mirror that used in existing discrimination law and will cover a range of behaviour from belittling remarks that someone is too young to be able to do their job to birthday cards suggesting that the recipient has reached an age where they might consider exploring erectile dysfunction drugs.
The problem for employers is that while some employees might tolerate this kind of behaviour or find it amusing, others might find it degrading or humiliating, especially if it was repeated after it became clear that it was unwelcome.
Getting age discrimination wrong could be very costly, say the ELA. There will be no upper limit on potential compensation, unlike unfair dismissal, which is subject to a statutory cap. This means highly-paid senior executives in their 40s and 50s who are dismissed for age-related reasons will often find it difficult to ever obtain comparable jobs. As a result employers could be liable for huge awards of compensation, covering many years of lost income resulting from the discrimination.
The law is intended to be age neutral so will apply to employees of all ages. It will force employers to confront the prejudices that underlie much of age discrimination: younger people “lack the authority to deal with our clients” a middle-aged woman will “never fit into our youthful atmosphere” older men are “more likely to be off work ill”.
Some of these stereotypes may be true, on average. That is legally irrelevant, says the ELA.
"The law requires that each person should be treated as an individual, not assumed to be like other members of the group, whether or not most members of the group do have such characteristics. Employers should make sure recruitment ads are age neutral.
"Adverts seeking ‘young, dynamic individuals’ or those using age-referant ‘trigger words’ are likely to be discriminatory"
They advise employers to eliminate date of birth from application forms. "The requirement to include age in a job application suggests it will be taken into account."
The ELA also warns that older employees may be entitled to adjustments to their working practices due to disability. 47% of over 55’s have a disability and the proportion is likely to increase.
Commenting on the debate, Michael Rubenstein said: “Age is the final frontier in discrimination law. Employers have learned to their cost how long it takes to change sexist and racist workplace cultures. Sensible employers will be tackling age stereotypes now and will not take the risk of putting this off until age discrimination law takes effect. The message is that time is running out on ageism."
The Employment Lawyers Association (ELA) acts as the voice of authority on the practice of employment law.
ELA is a nationwide association with the following fundamental aims:
· To promote the best practice of employment law and
· To service the needs of its members who are practicing employment lawyers throughout the United Kingdom.
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