HR Summit

Owen Warnock

Age Discrimination –How to meet the challenge but minimize the pain

Age Discrimination or …

… been there, done that, got the cardigan

Popular misconceptions…… older generation

• ‘An old person is a young person that has aged’• ‘Tend to be female but some old men can also be found’• ‘Smaller in height than younger people’• ‘Distinguished by wrinkles’• Can often be found at:

– Post Office– Bingo Hall– Bus Stop– Family Fortunes’ studio audience– First 5 seats on a double decker bus– Funerals

The Framework Directive

– Same pattern for all kinds of discrimination• Standard pattern has some variations for age, disability

and religion – Minor changes to UK law on race, sex, disability, but little

change in practice (eg definitions of harassment, indirect discrimination)

– New protected groups• Religion and philosophical belief – Dec 2003• Sexual orientation – Dec 2003• Age – Dec 2006. UK aiming for 1 Oct 2006

What we know, and what we don’t know

• Directive gives each government a lot of freedom• What will the UK do?

– Age Matters consultation summer 2003.– Proposed draft regs by now, finalised by end 2004– Government proposals timid on use of ability in Directive to

make exceptions– Adverse employer reaction to proposals– Rumours of considerable delay

What the Directive says on age

– DirectMust not treat a person less favourably on the ground of age than another person is, or would have been treated, in a comparable situation

– IndirectWhere an apparently neutral provision, criterion or practice would put persons of a particular age at a particular disadvantage compared with other personsBoth are subject to exceptions

– Harassment – now an express definition

The Directive – Indirect Discrimination

– IndirectWhere an apparently neutral provision, criterion or practice would put persons of a particular age at a particular disadvantage compared with other persons

– The usual exception:• The provision, criterion or practice is objectively justified

by a legitimate aim, and• The means of achieving that aim are appropriate and

necessary

What the Directive says on age

– DirectMust not treat a person less favourably on the ground of age than another person is, or would have been treated, in a comparable situation

– IndirectWhere an apparently neutral provision, criterion or practice would put persons of a particular age at a particular disadvantage compared with other personsBoth are subject to exceptions

– Harassment – now an express definition

The Directive – Exceptions 1

• Direct and Indirect Discrimination– Exception One - GOR

Member states may permit difference in treatment based on a characteristic related to age if

• the characteristic is “a genuine and determining occupation requirement”, and

• the objective is legitimate, and• the requirement is proportionate

The Directive – Exception 2

• Direct and Indirect Discrimination– Exception Two

Member states may provide that differences in treatment on ground of age is legal if objectively and reasonably justified by a legitimate aim including

• employment policy objectives• labour market objectives• vocational training objectives

Such differences of treatment may include, among others…

Exception 2

• Special conditions on access to employment and vocational training, including dismissal and remuneration conditions, in order to promote vocational integration or ensure protection of – Young people, older people and carers

• Minimum conditions of age, experience or service for– Access to jobs – Job-linked “advantages”

• Maximum age for recruitment where training is necessary so as to get a reasonable period of employment before retirement

Exception 2

• Special conditions on access to employment and vocational training, including dismissal and remuneration conditions, in order to promote vocational integration or ensure protection of – Young people, older people and carers

• Minimum conditions of age, experience or service for– Access to jobs – Job-linked “advantages”

• Maximum age for recruitment where training is necessary so as to get a reasonable period of employment before retirement

The Directive – Exception 3

Exception Three

Member states may provide that for retirement pensions and invalidity benefits, there can be– Ages for admission– Ages for entitlement– Age used in actuarial calculations

The Directive – Exception 4

Exception Four

Recital 14 “This Directive shall be without prejudice to national provisions laying down retirement ages”

Age Discrimination

• Will protect the old and the young• Employees and workers• Limited to employment field• Covers

– Recruitment– Terms and conditions– Promotion, transfer and training– Dismissal and retirement– Harassment– Victimisation– Post-employment discrimination

Direct Age Discrimination – Government Plans

• Less favourable treatment on grounds of age or perceived age– Genuine and determining occupational requirements which are

proportionate– Objective justification for specific legitimate aims

• Health, welfare and safety• Facilitation of employment planning• Training requirements• Encouraging and rewarding loyalty• Need for a reasonable period of employment before retirement

– Government appears to intend employers to have to justify point by point

Examples?

• The 80 year old pilot• Succession planning• Long training• Pay based on length of service

Examples?

• The 80 year old pilot• Succession planning• Long training• Pay based on length of service

Indirect Age Discrimination – Government Plans

• A provision, criterion or practice• Which disadvantages persons of a particular age/age group• Subjecting a person to a detriment• Which is not a proportionate means of achieving a legitimate

aim

Other Areas of Protection

• Harassment– Unwanted conduct with the purpose or effect of violating their

dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment

• Victimisation• Post employment discrimination

Impact on Legislation

• Unfair dismissal– A new fair reason – legitimate retirement age

• Is it automatically fair?– Basic award

• Redundancy calculation

Typical issues that will arise

• Recruitment• Service-related pay and benefits• Pension scheme rules• Implications of

– older workers– no, or higher, retirement age

New employees

• Recruitment– Pre-employment medicals– Graduate recruitment– Age requirements

• Young image• Preference for older calmer

workers– [Unjustifiable] requirements

• University education• Years of experience

– Application form• DOB?• Employment history?• Monitoring

Issues for Employers

• Service or age related benefits– Annual increments– Long service awards– Extra holiday– Sabbaticals– Sick pay– Benefits that cost more/are worth more for older workers

• Medical expenses insurance• PHI• Life insurance

– Indirect – flexible working only available to parents?• Could they be proved “justified”?

Pensions issues

• Govt. will use exemptions to allow pension schemes to have a Normal Retirement Age

• Age/service linked entitlements to benefits• Waiting periods• Salary/grade thresholds• Unreduced pension on early retirement• Actuarially reduced pension on early retirement• Prohibition on future accrual if member remains in service past

NRD

Issues for Employers

• No retirement age or higher retirement age– Workforce planning– Will employees stay longer? – Health and safety – assessing fitness rather than assuming ability

declines with age at same speed for all– Cannot rely on retirement to dispose of poor performers– Improving performance management to tackle those slowing down

or getting stuck in their ways– Interplay with other rights

• Eg Disability &/or sex discrimination, handling ill-health dismissals

Managing the older worker - capability

• Wide variation in age that capacity diminishes• Depends on individual and job• Life expectancy risen by nine years in last half century• Age at which infirmity of old age shows – risen faster• Majority of 65 year olds – no decline in mental capacity

Managing the older worker

• Health & Safety- Reasonable adjustments- Assessment of risk of the job and individuals’ capabilities- Manual handling programmes

Managing the older worker - Training

• Training- Styles and training methods- Mentoring programmes / coaching- Career management programmes- Graduates- Ability to deal with change- Aid in succession planning

Managing age diversity – the flexible workforce

• Flexibility- Working hours / patterns- Job role flexibility

Career management for advancing careers and individual downsizing.

Managing the older worker

• Performance management procedures- Transparent- Well documented- Consistent- Re-think or review these policies

• Other tools –- Job profiles- Competency frameworks- Appraisal formats- Job design

Life expectancy in the UK...

40

50

60

70

80

90

1900 1940 1970 2000 2050

MenWomen

The age mix in the UK

012345678910

1986 1996 2006 2016 2026

16-2425-3435-4445-5455-64

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

Age discrimination – action now?

• Recruitment – direct and indirect discrimination– Person specs. – Advertisements – content, language and medium used– Recruiters’ preconceptions (internal and external recruiters)– Recruiters’ ages– Equal Ops monitoring– Paperwork to prove your case

• Training for managers (especially recruiters)

• Enhancing management of poor performance– Capability policies– Are appraisals forms brave enough?– Training and support for managers

• Audit to assess size of potential problem– Service- and age-related pay and benefits– Pension issues

HR Summit

Owen Warnock

Age Discrimination –How to meet the challenge but minimize the pain