While the bulk of the impact of The Employment Equality (Age) Regulations 2006 law is on discrimination against older people, the law protects young and old alike and claims for discrimination against younger workers are therefore equally possible under the regulations. As a result employers will have to ensure that their practices do not discriminate against young workers as well as older workers from October 2006.
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While the bulk of the impact of The Employment Equality (Age) Regulations 2006 law is on discrimination against older people, the law protects young and old alike and claims for discrimination against younger workers are therefore equally possible under the regulations. As a result employers will have to ensure that their practices do not discriminate against young workers as well as older workers from October 2006.
Areas of concern when dealing with "young workers"
Graduate schemes
The use of the word "graduate" in advertisements or the practice of graduate recruitment generally could, on the face of the regulations, be unlawful as this indirectly discriminates against candidates aged under about 21. However provided that the job advertised genuinely needs graduate level knowledge or academic ability, it seems likely that an employer will be able to rely on the genuine occupational requirement exemption. This would be on the basis that being a graduate would be a genuine and determining occupational requirement and that it would be proportionate to apply such a requirement given the skills required for the role. Please click here to view a PDF version of our note on genuine occupational requirement in a new window.
Words used in interviews or job advertisements
The use of words such as "under qualified" or "inexperienced" may also amount to discrimination on the grounds of age, as young workers are less likely to have as many qualifications or as many years of experience as an older worker. Recruiters and anyone who places job adverts should be trained now to ensure that they avoid such labels as far as possible, and are ready for the regulations when they come into force in October.
Length of service criterion
Length of service is often used as a criterion for pay and non-pay benefits. This could amount to indirect discrimination against young workers because younger workers are less likely to have the necessary length of service than older workers. However the DTI recognises that these practices are in place to retain, motivate and reward staff. As a result the following exemptions apply to make the use of length of service criterion lawful in some circumstances.
1. Any length of service requirement for a benefit, which is five years, or less is exempted and will be able to continue;
2. Enhanced redundancy schemes where the service related provision is more generous than under the statutory scheme will continue to be lawful (given that the underlying statutory redundancy scheme itself continues to be lawful); and
3. If your length of service requirement is over five years it will be allowed to continue provided that the you are awarding the benefit to reward loyalty, to motivate or to recognise the experience of the employee where you have concluded that there is a business benefit resulting from having such a workforce and where the length of service criterion are applied similarly to staff in similar situations.
Undoubtedly however there will be a substantial amount of case law on whether the above exemptions apply to specific cases that arise. Please click here to view a PDF version of our note on exemptions in a new window.
Differentiating salary levels for different age groups
The regulations state that unless salary differentials for different age groups are based on the national minimum wage scales, setting different salary levels for different age groups is unlawful. Many employers differentiate salary on the basis of age, and this requirement is likely to involve a considerable increase in costs. If necessary employers should therefore consider whether their current policies can be objectively justified and, if not, adjust their salary policies for younger workers to avoid falling foul of the law in October. Please click here to view a PDF version of our note on objective justification in a new window.
Industry sector concerns
Finally, it should be noted that employees and employers alike in the retail and entertainment sectors may be affected by the implementation of the regulations because it may be unlawful to recruit only young workers to these sectors (in the belief that younger workers will appeal to younger customers) following the implementation of the regulations. It may however be possible to rely on the genuine occupational requirement exemption. Please click here to view a PDF version of our note on objective justification in a new window.
For full listings on our Age Discrimination series, please Click here.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 30/03/2006.
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