Back to Basics: Age discrimination

Recent media coverage of the resignation of Sir Menzies Campbell as leader of the Liberal Democrats should have brought age discrimination issues back into the public eye - but did anybody really notice?

The press has persistently referred to Sir Menzies' age. An article published in The Daily Telegraph commented that "he looks as if he has been drawing his pension since the late fifties". Another jibe referred to him "heaving himself up on his Zimmer frame" to speak in Parliament. A Daily Mail columnist suggested he "probably thinks Stanley Matthews still plays for England".

Sir Menzies has confirmed that this obsession with his age made it impossible for him to continue as leader. But isn't such harassment unlawful?

It seems that one year into its life the legislation on age discrimination has been forgotten about - but that does not necessarily apply to those of us employing people in less high-profile jobs.

If Sir Menzies worked in a pub the risk of a claim would be high. Any employer who exposes an employee to comments of a discriminatory nature on an ongoing basis could face a claim. An employee forced to resign because of his age would likewise have a claim.

What are the age discrimination laws?

Passed in October 2006, the Employment Equality (Age) Regulations are aimed at preventing age discrimination in the workplace. The key message is that employers should focus on the employee's relevant skills plus their performance in the role and their actual capability, rather than simply their age.

And not only do the Age Regulations prohibit discrimination on the grounds of age, they also cover perceived or apparent age as well. So, for example, teasing someone because they look older or younger than their actual age is unlawful too.

Harassment may be unintentional but it is the actual effect on the individual that matters rather than the intention of the perpetrator. The key test is whether the behaviour is unwanted.

As a result, harassment can include a general culture in which ageist jokes, such as rude comments on birthday cards, are permitted, or where individuals are subject to harassment from third parties such as customers or suppliers. If ageist jokes are allowed to be passed around the workplace, it could potentially create a hostile environment for older employees and so place the employer at risk of a claim.

It is only through raising awareness among staff of acceptable standards of conduct that such behaviour can be reduced. Research from the University of Kent for the charity Age Concern showed that ageism is the most common form of discrimination in UK workplaces, yet it tends to be viewed less seriously than the others. The treatment of Sir Menzies seems to confirm this. Training and raising awareness are the only means of changing these attitudes.

So where are the claims?

There has not been the predicted explosion of claims. Employment tribunal statistics from the first year age discrimination laws have been in place show there were 972 complaints. The vast majority were settled. The most likely reason is there is still some uncertainty as to how employment tribunals will approach these types of claim.

However, as yet we are still waiting for the first successful claim in age discrimination to be reported.

Negotiating the recruitment minefield

Age discrimination issues for the pub industry, like all other sectors, begin at the recruitment stage. A pre-legislation report written by the Centre of Research into the Older Workforce found that the hospitality sector had a higher proportion of young employees than any other sector and was the most unlikely to employ people over the age of 55.

The government's message to promote the age discrimination rules has been that ageism is bad for business. A report in The Guardian published when the Age Regulations were coming into force attracted the following response from one entrepreneur who seems to have missed the point: "Ageism is bad for business? Not in a lap dancing club it ain't."

To an extent the Age Regulations recognise that some discriminatory acts will not be unlawful if the employer is able to show 'justification' for their decision. This means a difference of treatment on grounds of age does not constitute discrimination if it is determined to be a 'proportionate means of achieving a legitimate aim'.

But it is unlikely that an employer's actions will be justified if based on unfounded stereotyping of the older worker - for example, assuming they are slower. It will rarely be justified for a required age range for candidates to be stipulated in a job advert or for a description of a candidate to imply they need to be a certain age.

If experience is required then it must be relevant. A kitchen porter may acquire the relevant experience needed for his role a lot quicker than a deputy manager would.

While typically the leisure sector employs young staff, complying with the Age Regulations should not be seen simply as a requirement to employ older people behind the bar. Don't forget that protection extends to all ages, young, old and in-between. Appointment should be on merit and ability to do the job.

The impact of the National Minimum Wage

The Age Regulations extend to the terms and conditions offered to employees too. Over the Christmas period pubs may take on extra temporary staff, many of them students, to cover the rush. These jobs will normally pay the National Minimum Wage. But will there be a claim of age discrimination if these staff are paid less than other workers?

The Age Regulations provide for an exception so employers can pay workers less than other staff without having to justify their decision - but only if the younger workers are paid less than the 'adult' national minimum wage rate of £5.52 an hour. If younger workers are paid more than the adult minimum wage but less than older workers a licensee could be committing unlawful age discrimination.

Will the government extend the discrimination laws?

If there are a few more high-profile cases which flout the law we can expect further legislation. The Government's Discrimination Law Review recently consulted on whether further steps are necessary to fully implement protection against age discrimination.

The charity Help the Aged has responded that outside of employment age prejudice is tolerated and even accepted in the provision of goods, facilities and services. It wants to put ageism on an equal footing with racism and sexism.

This coincides with the government's stated intention to have a Single Equality Bill to deal with all types of discrimination and to simplify the position on protection against discrimination in the workplace and also in relation to the provision of services.

• Michael Ball is employment partner at solicitor Halliwells​