Forties People

Age discrimination is rife – if the spiraling level of claims is to be believed - but is our employment system inherently discriminatory? Some think so…

There are moves afoot to do away with the retirement age altogether, on the basis that it constitutes age discrimination. The call by the Work and Pensions select commitment said the move would allow pensioners to continue working, helping the two million who live in poverty and the 1.1 million who live off half the average income to earn extra cash.

Past recessions have led to disproportionate numbers of older workers over 50 losing their jobs and never working again. The committee said the Government must never allow this to happen again.

And Terry Rooney MP, chairman of the committee, said: "Many Government strategies have worked well in the past but are now showing diminishing returns. The default retirement age is discriminatory, is bad for society, bad for older people, and bad for the economy. It has to go."
This comes after the author of an influential report into the future of pensions said the state pension age should be raised to 70. Lord Turner said that the age when people get a state pension should be raised more quickly. The current state pension ages - of 65 for men and 60 for women - will rise to 66 in 2024, to 67 in 2034 and 68 in 2044, with each rise being phased in over two years.

But what constitutes discrimination?

In the words of ACAS, direct discrimination is defined as less favourable treatment because of someone’s age.
For example it is unlawful on the grounds of age to:

• decide not to employ someone
• dismiss them
• refuse to provide them with training
• deny them promotion
• give them adverse terms and conditions
• retire an employee before the employer’s usual retirement age (if there is one) or retire an employee before the default retirement age of 65 without an objective justification.

Indirect discrimination means selection criteria, policies, benefits, employment rules or any other practices which, although they are applied to all employees, have the effect of disadvantaging people of a particular age unless the practice can be justified. Indirect discrimination is unlawful whether it is intentional or not.

But it’s not only the older workers who have a case...
Employers looking to cut costs could face claims for indirect age discrimination if they implement ‘last in, first out’ redundancy policies that mean that younger workers are more likely to lose their jobs, says law firm EMW.

Jon Taylor, Head of Employment at EMW says: “Redundancy is the number one employment law issue for employers right now. Before age discrimination legislation came into force in 2006, uncompromising ‘last in, first out’ redundancy regimes were legally perfectly acceptable. In fact, they were often seen as the easiest way to avoid unfair dismissal claims arising out of the implementation of complex selection matrices, often including criteria such as attendance records which could discriminate against women and the disabled.”

EMW law advises companies to keep paperwork detailing the rationale behind their redundancy policies, in order to defend themselves against claims should they arise. Jon Taylor also suggests that: “Employers should also consider consulting staff on alternative options to redundancy, such as modified hours or job sharing. Where suitable alternative options can be identified, they should then consider their feasibility from a business perspective.”

The CIPD is very clear that the efficient and effective use of people’s skills requires that employment decisions should be based on competencies, qualifications, skills, potential and objective job-related criteria obtained through careful analysis of job requirements and job performance.

But as long as performance still retains a subjective element – as it does in the vast majority of organisations – the debate will, for sure, run and run.