Recent suggestions that you should rid yourself of older staff, as they will be unable to adapt to the growing e-services economy, should be viewed with caution. The implication is that older employees have outdated skills that are not adaptable to the modern market. Such advice could fall foul of employment law.
Currently, the law does not prohibit an employer discriminating against an individual on the basis of age. It is perfectly legitimate for individuals not to be recruited, denied training opportunities and even dismissed because of their age.
However, the tide is turning. Our population is growing older and the Government has introduced a voluntary code of practice (see box), designed to prohibit discrimination and encourage employment and retention of older workers. The code encourages employers to review their policies to ensure that employees are not being unfairly treated simply because of their age.
The code of practice provides guidance on how age discrimination should be eradicated within the employment cycle. It emphasises that any anti-age discrimination policy should be part of the wider aim of promoting equality of opportunity.
The code offers guidance to eliminate the possibility of decisions being taken on age-specific criteria: for example, in recruitment, it advises against using age limits or ranges in job advertisements, avoiding phrases that imply age restrictions, such as young graduates, and instead specifying the abilities required to do a job.
Although the code is not recognised by law, there may be legislation in the future to prohibit age discrimination. There is now a draft European directive seeking to extend the principle of equal treatment to age. If the directive is passed, the UK Government will be forced to introduce legislation making it unlawful to discriminate on the grounds of a person's age.
According to the code, employees with at least one year's service, and who are below the normal retiring age, have the right to lodge a claim if they feel they have been dismissed unfairly. To justify the dismissal, employers must be able to demonstrate to a tribunal that the employee was:
Employers cannot just 'get rid' of employees who are not performing. The onus is on the company to consult with the individual and try to motivate and train the person to meet the required standards. Only after periods of review, and a failure to improve, will dismissal be justified.
If it is apparent that the employee is not responding to training, the company could consider moving them to an alternative role.
If the employee succeeds in an application for unfair dismissal, then they could be entitled to compensation. Since 25 October 1999, the maximum compensation award has been increased to £50,000.
For more details contact DLA Human Resources Group associate Anthony Thompson on 0207-796 6443
Voluntary code of practice on age
The Government's code of practice on age discrimination advises:
This was first published in August 2000