Employers are increasingly ramping up efforts to ensure they have a diverse workforce but even policies that appear solid on the surface may be letting subtle discrimination slip through – that’s the warning from three industry experts who say processes should be reviewed on a regular basis.
Ian Chapman Curry, a partner at Gowling
law firm, along with principal associates Richard Lee and Ruth Ormston, pointed out the following areas which employers should pay particular attention to.
“Checking that the wording of your job advertisements do not discriminate against people of a particular age or age bracket is important,” warn the trio. “Ignoring this could result in you receiving a claim from an unsuccessful job applicant, who is protected from age discrimination under the legislation.”
According to the experts, phrases like “young & dynamic” can easily slip though the net but should be avoided at all costs.
“You should avoid using age, a specific qualification or period of experience as recruitment criteria, unless you can show that it is really necessary for the person to be able to do the job,” they stress.
Be careful what you ask
“Focus on making sure that a candidate's date of birth is removed from their application form, and be aware of questions which could easily mark an employee's age,” warn Curry, Lee and Ormston – this includes questions on schooling or employment history with dates.
“Make sure interviewers are aware of the types of questions that they should not ask – this applies to age just as much as it applies to the other characteristics protected by the Equality Act 2010,” they add.
The employment lawyers also warn HR professionals to be wary of offering benefits which, despite being offered to all employees, disadvantage people of a particular age.
“There are certain exemptions when it comes to offering benefits linked to length of service,” they explain. “Where the person receiving the beneficial treatment has a length of service in excess of five years, the provision of the benefit, facility or service will only be lawful if it fulfils a business need, such as rewarding a higher level of experience, rewarding loyalty or increasing employee engagement.”
Ensuring insurance stacks up
While there is a legislative exemption that applies to having a cut-off age for insured benefits, Curry, Lee and Ormston say employers should regularly review any insured benefits they provide to ensure that they either fall clearly within the exemption or can be objectively justified.
“Failure to do this leaves employers and potentially trustees (where insurance is provided through a pension scheme or life assurance arrangement) open to challenge,” they warn.
Put policies in writing
“Provide your staff with access to copies of your equal opportunities and harassment policies,” urge the trio. “These should include examples of the types of behaviour that can be age discriminatory and the consequences for employees of discriminating or harassing individuals on the basis of their age.”
Train to retain
“All staff, particularly managers, should be trained on avoiding age discrimination in the workplace, focussing in particular on key areas such as the recruitment process, promotion, and dismissals,” suggest Curry, Lee and Ormston.
“Training and refreshers on systems, processes and the 'tools of the trade' should be available for all, to avoid people not being up-to-speed on how new technologies and processes work,” they add.
“Banning banter would be an extreme measure, but all staff should be aware of the types of behaviour that constitute age discrimination,” warn the three legal experts. “Be clear that age discriminatory comments against young or old employees are not tolerated and that disciplinary action could be taken if employees disregard this.”
Often aimed at working parents or millennial leisure-seekers, Curry, Lee and Ormston say companies should ensure their policies are accommodating to all age brackets.
“Remember that this policy must be generic and not aimed at specific groups,” they stress. “It should be open to old and young without any assumptions or judgements being made about why people want to take it.”
“Age shouldn't be a factor when considering promoting individuals; it should be done on the basis of talent, merit and business need,” say the experts – however, there are some exceptions like if the occupation has an actual age requirement or is objectively justified.
“The latter can be hard to show in practice,” warn Curry, Lee and Ormston.
Retiring from retirement
The traditional concept of 'retirement' might be dead but age-accommodating employers can still support their workforce by helping employees 'train for their retirement'.
“Support provided might include access to guidance on financial planning, pension planning and generally thinking about life after work,” say the three employment experts.
“Employers need to ensure that any such 'pre-retirement planning' is not in itself discriminatory though, and avoid targeting employees at a particular age on the assumption they are gearing up to leave the business,” they warn.
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