Age Discrimination Law to Come into Force

By Alison White
The new anti-age discrimination law which will come into force in October will help staff retention and improve labour market choice according to some employers. However, the small employers are a lot less keen on the changes, as they worry about rising recruitment costs. The new legislation requires employers to review all their employment practices to ensure they are based on skills and competencies, not age.

The new law will also have an impact on the job adverts. Words and phrases that used to be the key words in the old adverts may be considered ageist so the employers should worry about this too.

When taking a decision no matter if on recruitment, retention or training, the employers must leave the age out of it. Beside the advert text, the application forms must be carefully reviewed by the companies so they can avoid opening to legal action under new laws.

There are companies that are already applying the new requirements and took out the age from their recruitment application forms. This is the case of Asda. Supermarket Asda removed the requirement for job applicants to tell them their age. Asda's move goes beyond the terms of the new age rules but it could well be a sign of things to come.

The idea of the new law is not to forbid employers to know the age of the applicants but to avoid taking the age in consideration in the decision process about hiring that person.
Stephen Morrall, a partner at law firm Middleton Potts offers the solution: "personnel departments will ask job applicants to fill out a separate form outlining their race and age, this form will be kept on file but not given to the person in the organisation making the decision on who to employ."

If that for companies like Asda the coming into force of the new law means doing business as usual as they have a history of employing older workers, there are other companies that are worried about this moment. This is the case of the firms that market themselves to a young or old audience and want to employ people who reflect their customer base.

But there are solutions for these cases offered by the new law itself. There is a get-out clause for some industries and employers can still discriminate if they can show that being a certain age is a genuine occupational requirement. It is considered a genuine occupational requirement that a firefighter shouldn’t be older than 55 years old as he or she has to be physically fit enough to pull people from burning buildings but it won't be acceptable for media firms to use the genuine occupational requirement clause to refuse employment or fail to promote people over the age of 50.

The language of the job adverts should exclude specifying the age but other words which are associated with age such as energetic may also be problematic. Ms. Margaret Thirlway, head of employment law at London-based SA Law, explains that the meaning of the law is that "The use of an age-loaded word like energetic may not itself lead to a tribunal, but when combined with a pattern of action, such as denying older workers training, then it might lead to a claim".



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