Legal advice: age discrimination
When you're faced with the choice of appointing a young woman with a cheery disposition to your youthful team, or an older woman who has, on the face of it, loads more experience, who would you choose?
Tricky one. Since the Employment Equality (Age) Regulations 2006 were brought into force, you've had to be a little bit more circumspect.
Does this mean you have to give the older applicant a fair crack of the whip?
Well, yes, you should. If you don't consider her application, you might find yourself on the wrong end of an age discrimination claim.
This is what around 200 businesses a month are finding to their cost, based on recent Employment Tribunals Service statistics.
Discrimination claims can be brought in relation to all stages in the employment life-cycle, so let's take a look at four of them now.
1. Recruitment
You should, if you've not already done so, remove age-related language from your recruitment documentation. The Northern Ireland case of McCoy v McGregor and Sons, involved an advertisement for a timber sales representative which asked for someone with 'youthful enthusiasm'. Mr McCoy, aged 58, applied and was asked whether he still had the necessary 'drive and enthusiasm' to be successful.
Two younger applicants were appointed, neither of whom was asked about their drive and enthusiasm. This, together with some inconsistent scoring applied to the candidates, led the tribunal to conclude that unlawful age discrimination had occurred.
2. Benefits
Many employers have had their patience sorely tested in trying to ensure that the benefits they offer their staff are not tainted by age discrimination.
In one recent case, Swann vs GHL Insurance Services UK , the tribunal concluded Mrs Swann had not been unlawfully discriminated against on grounds of age by the operation of her employer's flexible benefits scheme.
The benefits scheme provided employees an option to join a private health insurance scheme, the premiums for which were calculated according to age and gender.
Mrs Swann was given a 'flex fund' valued at only £462 per year, when the cost to her of private health insurance alone was £631.
Others who were younger were able to purchase additional benefits with the same amount of money.
The tribunal also went on to find that even if the benefits package had amounted to discrimination on grounds of age, it would not have been unlawful because it would have been justified.
This was because the employer had made all reasonable efforts to offer its employees a flexible benefits package that was the most advantageous possible to staff. This would have had the desired effect of enabling the employer to recruit and retain staff, which was the stated aim of introducing the flexible benefits in the first place.
Note, however, that this is just a tribunal decision, and one of the tribunal members disagreed with the decision, finding that the entire flexible benefits package was tainted with discrimination because of the age-related element.
Until this issue reaches the Employment Appeals Tribunal we may find different tribunals reaching different conclusions.
3. Dismissal
The age regulations benefit people of all ages, not just older employees. The case of Wilkinson v Springwell Engineering is a reminder of that.
Miss Wilkinson was 18 when she was dismissed, allegedly for incapability. She was told that she was 'too young' for the job.
The employer didn't follow the statutory dismissal procedure, nor did it bother to reply to an age discrimination questionnaire. This led the tribunal to conclude that the employer held the stereotypical view that a younger person did not have the skills to perform the role.
She was awarded £5,000 compensation for injury to feelings, uplifted to £7,500 due to the company's failure to follow the statutory dismissal procedure.
When you're thinking of dismissing an older worker, don't fall into the trap of relying vaguely on 'health and safety' concerns. This is what the employer in Martin v SS Photay and Associates did when it dismissed Mrs Martin two days after her 70th birthday. They said that she fell into the "high-risk category for health and safety" on the basis of her age and health problems, but were unable to provide any evidence to substantiate those claims.
Instead, it appeared that the real concern was her performance, which they had not discussed with her. Injury to feelings compensation was assessed at £1,030.
4. Retirement
If you're planning on asking an employee approaching their 65th birthday to retire, you must make sure that you comply with the procedural rigmarole laid down in the age regulations.
Failure to do so could lead to a finding of automatic unfair dismissal.
In essence, the age regulations require you to write to the employee between one year and six months before the intended retirement date, informing them of their right to request not to retire.
In practice, this is an area where employers make mistakes, as they often assume that retirement will happen automatically when the employee reaches their 65th birthday, or they fail to put a note in the diary early enough for them to be able to write to the employee at the appropriate time.
If the employee makes the request, you must then hold a meeting to consider the request.
You must then notify the employee of the decision and, if you have not given the employee what they asked for, must notify them of their right of appeal against the decision.
If an appeal is lodged, then (other than in exceptional circumstances) you must have another meeting to discuss the appeal.
What now for the older applicant?
She should have been given a fair crack of the whip. The age regulations should enable her to have the same opportunities as younger candidates, and if, on paper, she should make the shortlist, then it's up to you to put her on it.
It's then down to her to show that she has the other necessary qualities to succeed in the role.
If she hasn't, and you can show that she's failed to demonstrate those qualities in the application process, you'll be in a much better position to defend any subsequent age discrimination claim.
