Source: theHRDIRECTOR
Date: December 2006 

As employers get to grips with the regulations, Freda Line, Head of Employer Relations at the Employers Forum on Age, looks at the issues employers are wrestling with as they see things working in practice, and considers the best approaches to some of the ‘hot potatoes’ such as the recent birthday card furore.

Over the last few years the Employers Forum on Age (EFA) has been focused on trying to get age laws as workable and employer friendly as possible. To that end we ensured that as many of the EFA’s 250+ members as possible were fully engaged in all the different consultations and we took every opportunity offered to meet with officials and ministers in order to raise employer concerns. To a large extent, we believe that we have been successful in achieving our aim.

Clearly the legislation is not perfect and already we have seen pension elements put on hold (if only briefly) for urgent revision. Meanwhile, the EFA are still actively lobbying for further amendments. There are some key issues that have not been addressed by the regulations as they stand, including insurance, government funded training programmes, the minimum wage and the maintenance of the Statutory Redundancy Payment Scheme (SRPS). And, from the EFA’s perspective, resolving these still remain at the centre of our activities. Let’s look at each of these in turn.

INSURANCE
The EFA has worked with the ABI and specialists in group insurance and submitted a challenging paper to DTI officials and ministers seeking urgent clarification on how the age laws interact with and affect insured benefit provision. We are hopeful that we will be able to persuade the Government either to amend the regulations or issue revised guidance so that employers do not fall foul of the law. The big issue here is whether it will be lawful for employers to cease providing insured benefits to employees over 65 – when insurance premiums rocket in cost.

GOVERNMENT FUNDED TRAINING PROGRAMMES
The age limits imposed on NVQ training funding and Modern Apprentice schemes are one of the hidden aspects of age laws, which are likely to come back and haunt the Government. The EFA are now getting about ten enquiries a week from concerned employers – many in the public sector – about how they are to justify refusing access totraining / employment because of government imposed age bars. Many consider that the Government’s arguments that the European Equal Treatment Directive allows for such arbitrary age limits, because the Directive covers employment and vocational training and does not cover ‘funding’, as specious. And lawyers are already predicting a challenge in this area.

MINIMUM WAGE
Though there were the usual noises about the rise in the minimum wage in October, it was surprising that so little was heard about the maintenance of the discriminatory lower pay bands for younger workers. The retail, fast food and service sectors could all be affected if, as we suspect, the decision is challenged in the future by younger workers making an ‘equal pay for equal work’ argument.

REDUNDANCY
Finally we come to redundancy and what was seen by many employers and lawyers as the Government’s misguided decision to maintain the existing structure of the SRPS with all its age bars. The Government failed to recognise that many large employers provide significantly more generous (enhanced) schemes and that these do not mirror the SRPS. All agree that it is bizarre that an employer that provides a generous  redundancy package based on service alone could be acting unlawfully, whilst an employer mirroring the SRPS and all its age bars, will be within the law.

HIDDEN RISKS
So what is really worrying employers? The trite answer would be all of the above. And whilst this is true, it seems clear that some are also struggling with some less well known aspects of the legislation. An excellent example would be recruitment language.

The EFA are currently monitoring calls and enquiries from employers, and recruitment language tops the league table. Whilst most member organisations – who have been working on age issues for a while – seem relatively unworried, the surge in demands for absolute answers to the question of appropriate language from non-members, and particularly the recruitment sector, has been surprising. It seems that the recruitment sector, in the main, slept through the five years of consultation on age laws; has not been aware of what was happening just the other side of the Irish Sea; and has only just realised that using ageist language might see them in court.

The recruitment sector is right to be worried – it is still easy to find adverts with blatantly age discriminatory language, even age bars. And of course, the majority of adverts still feature the traditional demands for time-linked experience. “stop trying to describe the individual and spend more time describing the job” So what are the answers? And that’s the problem. Everyone is looking for certainty, where there is very little. There are of course some words that should no longer be used, including ‘young’, ‘youthful’, ‘old’, ‘older’, ‘mature’. But what about ‘junior’ and ‘senior’? The EFA believe the former is probably not a good idea, the latter if specifically in relation to a job title, might be OK. Then we get to the tricky words; ‘dynamic’, ‘energetic’, ‘keen’, etc. None of these words are ageist in themselves; it is when they are run together that they imply a company is seeking youthfulness. Many of these words are just padding. Let’s be honest, which employer would really want someone who wasn’t dynamic or energetic or keen. Recruiters need to get back to basics
here and stop trying to describe the individual and spend more time describing the job.

Meanwhile what has surprised the EFA is the astonishing amount of scaremongering that is going on:
• You can’t send anyone a birthday card at work
• You should stop holding Christmas parties
• You won’t be able to ask for experience
• Age laws will be the death of pensions.

BIRTHDAY CARDS
A number of national papers recently featured a story that a law firm was banning employees from sending birthday cards – to avoid any possible claims of age-based harassment. How ridiculous. At the EFA we  celebrate each others’ birthdays and – as a mixed age team – manage to do this without causing offence, or in the legal language, ‘creating an intimidating, offensive or hostile environment’. We are sure that most employers will be able to do the same. Teams and colleagues should celebrate birthdays if they wish. There can’t be any nicer way to encourage team spirit and maintain staff morale, as long as you remember not to overdo the candles, the numbers on the balloons etc. I guess we will get case law one day. Will it be from a 21 year old who feels they have missed out on a special day, because colleagues did not make a fuss?

CHRISTMAS PARTIES
A free London paper ran a story that you should avoid holding a Christmas party, just in case someone took offence at the venue, perhaps seeing the choice as deliberately age biased. Once again, this seems to be an over the top reaction. Surely managers and colleagues can be thoughtful enough to find a venue that everyone will enjoy. A bit of effort here might in fact aid team building and allow more people to join in. A noisy, boozy clubby venue does not just exclude older people; it may also exclude many others.

YOU CAN’T ASK FOR EXPERIENCE
A lot of people seem to have got in a muddle about experience. There is nothing in the age laws that says you cannot specify and seek experience. What the age laws do say, is that time-linked experience requirements are likely to be indirectly discriminatory and, therefore, if challenged will need to be justified.  Many members of the EFA have welcomed the opportunities this aspect of the regulations has given them. They have recognised that the use of time-linked experience is just lazy shorthand. Age-smart employers have used this as an opportunity to up-date job descriptions and have worked with recruiters and line managers to encourage them to look more carefully at the quality of experience required. We predictemployers will in the end see a better calibre of candidate not only applying but making it through the recruitment process.

THE DEATH OF PENSIONS
When taking part in the many consultations that formed a background to age laws, the EFA stressed to the Government the risks that badly drafted age regulations would pose to company pension provision. The Government has already acknowledged that they have got some of this wrong and in the transfer of responsibilities from DTI to DWP have perhaps recognised that a greater level of expertise should have been engaged in the first place. But all of this misses the point. Employers will cease to deliver pension benefits or will significantly reduce these benefits if the amended age regulations do not completely reassure them that
they will be free from charges of age discrimination. Perhaps by the time you read this article, we will all have been reassured. Let’s hope so.

WHAT DOES THE FUTURE HOLD?
A couple of months after age laws came into force, the EFA and employment lawyers are in an odd position. We are in fact holding our breaths, waiting to see what case law will bring. While all other EU members have had to comply with the Equal Treatment Directive, the UK has been looking to learn particularly from the Irish experience. There, age claims amount to twenty per cent of all claims on discrimination grounds. The UK Government anticipates about 8,000 claims a year, but forecasting where these may come from and what issues they will cover is difficult. The next few months will perhaps see the predicted claims on poor recruitment or promotion, but will we also see the claims from ousted senior executives that some lawyers expect? Whatever happens, the EFA looks forward to discussing these cases and their impact on your employment policy with you in the future.