An update on problem areas at the beginning and end of employment

According to a report from the Department of Work and Pensions, around one in four people aged between 50 and 69 experienced age discrimination when working or looking for work. The annual cost to the economy of age discrimination is estimated to be between £16 billion and £31 billion a year. By 2010, almost 40 per cent of the UK workforce will be aged 45 or over.

This is a problem that won’t go away, even though claims of unfair dismissal or age discrimination from disgruntled employees forced to retire at 65 have now been put on hold pending the decision in the Heyday case (R, on the application of the Incorporated Trustees of the National Council for Ageing [Age Concern England] v Secretary of State for Business, Enterprise and Regulatory Reform).

Heyday is challenging the retirement age in the UK’s age discrimination regulations, saying it is contrary to the European directive on which the regulations are based. This matter has been referred to the European Court of Justice. The president of Employment Tribunals has now put on hold all cases on the retirement of employees at 65 following the Employment Appeal Tribunal’s hearing of the case Johns v Solent (EAT/0449/07/MAA).

This means more uncertainty over whether it is lawful to retire someone at 65. Until the courts decide whether or not the government has correctly stated what the law should be, the only safe course of action for employers is to have the fallback position of being able to objectively justify their retirement age policy.

Issues surrounding the beginning of employment are a lot clearer. The age regulations outlaw both direct and indirect age discrimination, and cover all aspects of the recruitment process. So, for example, an advert placed only in a magazine aimed at young people may indirectly discriminate against older people because they are less likely to read it and apply for the job.

A standardised application form is a good way of avoiding discrimination, because it can cover only information that’s relevant for the position, whereas asking for CVs could risk allegations of discrimination if applicants include details such as their date of birth. Having found this a successful strategy, many companies now put their application forms online. But employers should consider whether this could disadvantage some candidates. According to the Office of National Statistics, 55 per cent of people aged 50 or over in Great Britain in 2006 had not used a computer during the previous three-month period, compared with 13 per cent of 16- to 30-year-olds. The ONS also found that only 61 per cent of households in 2007 had internet access.

Employers should not assume everyone is able to use, or has access to, an online application system easily. If applicants are able to show that applying online disadvantages them, they may have a discrimination claim. Although online application forms do cure many evils, they should not be used exclusively. Employers should offer alternatives, such as handwritten applications by post.

Employers need to keep in mind their target audience. As with birthday cards, giving a work colleague a card that begins “You know you are old when...” is not unlawful. It only becomes a problem if the recipient finds the message inappropriate.

Published on, 13 December 2007