As employers adjust to the new age legislation introduced earlier this month, barrister Charles Price outlines why employee training is crucial to avoid legal issues for businesses.
The Employment Equality (Age) Regulations 2006 SI 2006/1031 were made on 3rd April 2006 and came into force on 1st October 2006.The Irish introduced age discrimination provisions through the Employment Equality Act as far back as 1998 and since then, age discrimination cases have constituted 25 percent of all discrimination claims reaching a tribunal. With unlimited compensation being awarded by employment tribunals in discrimination cases and the number of general claims to employment tribunals increasing, businesses and practitioners in England and Wales have every reason to keep one eye the new law.
Under the new law, employers can be held liable for acts of employees who discriminate on grounds of age and so training staff about what is acceptable under the Regulations is vital. Prudent employers will, no doubt, take advice on how to introduce age neutral recruitment, retirement and promotion policies but it is in areas such as instructing staff as to what constitutes 'harassment on the grounds of age' where the role of the trainer will be crucial.
Harassment
The Regulations* define harassment as 'unwanted conduct which has the purpose or effect of either violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person, where such conduct is done 'on grounds of age''. The same law also spells out that conduct will only be regarded as having the effect of creating a 'hostile environment', etc if, having regard to all the circumstances including in particular the perception of the complainant, it should reasonably be considered as having that effect.
The Regulations require that this conduct is 'unwanted'. In other words, it is important for the complainant to make sure that they make it clear that the behaviour in question is unwanted. Harassment of an older person does not necessarily constitute age harassment unless the reason for the conduct in question must be the person’s age in order for harassment to occur.
The Regulations further provide that employers are liable for acts of their workers which are unlawful under the Regulations, unless they have taken reasonable steps to prevent them. It is important therefore for employers to investigate and initiate the disciplinary process if necessary, when complaints are made. Examples of comments, which have been deemed to constitute harassment on the grounds of age in other countries are:
A diary containing 'old git' comments or 'amusing' old age birthday cards, is likely to establish a 'prima facie' case of less favourable treatment on age grounds, on the basis of a discriminatory atmosphere at work. In determining whether that conduct is discriminatory an employment tribunal will consider both objective aspects (does the conduct have the effect of violating a person's dignity or affect the environment?) and the subjective view of the complainant (did the complainant genuinely feel that their dignity was violated by the behaviour in question?).
It is advisable to train staff in what constitutes unacceptable behaviour such as subjecting workers to age related jokes and excluding older employees in social activities on the grounds of age and will help to show a tribunal that the employer has done everything it can to prevent such behaviour. In case of future employment tribunal proceedings, the participant on such a course should sign a form to say that they have undertaken such training.
It is likely that we will see cases brought to an employment tribunal where an employer has withdrawn general training from older employees. It should be noted that staff training aimed at progressing employees' careers can advance an employee in terms of his or her continued progression through the ranks of the company and therefore should be open to all workers regardless of age.
Training in order to allow an older worker to catch up if the action 'prevents or compensates for disadvantages linked to age suffered by persons of that age or age group doing that work or likely to take up that work' is permitted under the new law. Make sure all your personnel staff and line managers are fully aware that the changes are coming in 2006.
In summary trainers should:
- Train staff so that they are fully aware of the behaviour that could be perceived as harassment, direct or indirect discrimination and victimisation on the grounds of age
- Always ensure that staff responsible for selecting and interviewing candidates are trained in equal opportunities and age discrimination.
- Make sure managers and supervisors do not introduce minimum or maximum age "cut-offs" simply because of assumptions about age groups, and that they are aware that age is not a barrier to career progression and promotion.
- Update policies dealing with bullying and harassment to ensure that they include harassment on age grounds and make it clear that such harassment is unlawful and that individuals can be held personally liable as well as, or instead of, the employer.
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Links
<a href="http://www.agepositive.gov.uk/newsdetail.cfm?sectionID=44&newsid=678
" target="_blank">Age positive includes the following resources:
- precedent letters to employees
- an age bias free application form
- all the official Acas and DTI guidance
For an online calculator which takes the new Age Discrimination law into account see:
<a href="http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f200609241.htm&PageTitle=Redundancy%20Pay%20Calculator
" target="_blank">www.emplaw.co.uk
*The Employment Equality (Age) Regulations 2006 SI 2006/1031 were made on 3 April 2006 and came into force on 1 October 2006. For a full text see:www.opsi.gov.uk
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The author, Charles Price, is an employment lawyer of seven years' call.
The above article is for academic purposes only. Legal considerations must be looked at in the light of the particular circumstances and it may be wise to seek legal advice.
