Partner Article

Age discrimination: time to challenge assumptions

“I wasted time but now doth time wasteth me”

This cri de coeur of Richard II is probably one which chills the mind of many employees as they approach an impending birthday which pushes them into a new bracket in terms of their age.

The Equality Act 2010 aims to protect individuals of the “younger” age spectrum as well as those that can be categorised in the “older” group. Of course, these are nebulous and flexible terms at the best of times!

However, the purpose of this article is to focus on how we are failing to utilise the talents of older workers and consequently how employers could expose themselves to litigation risk and indeed broader financial loss.

I have outlined in previous articles how the market place has changed and how working relations have transformed so that terms such as “work provider” and “work deliverers” are probably more apt and accurate than the concept of employer and employee.

In essence, despite legislation being in place, many UK work providers have not addressed the issue of age but rather have approached the issue as seeing older workers as either disposable or that provision will have to be made to meet their needs to be working for a longer period of time given the pension crisis situation.

Some companies have taken the initiative by recruiting older workers or offering apprenticeships for older workers including Barclays, National Express, B&Q, McDonalds and Lloyds. Interestingly, the number of self-employed over 65s has doubled over the past five years and now stands at half a million. However, there is an emerging skills gap in that the UK Commission for Employment and Skills states that between 2012 and 2022 some 12.5 million vacancies have or will open up yet there are only 7 million young people coming into the labour market.

The response of UK work providers is still largely ad hoc and there is a danger that they fail to utilise the broad skills matrix of older workers and lose that “intellectual property” altogether. An alternative to this would be to think creatively about how to maintain older workers using more flexible relationships including part time work, flexible working or consultancy models. Or an equally interesting approach would be to identify those coming up to retirement age and putting them into project roles to ensure that there is skilled development going forward.

Finland is an interesting role model. The Finnish Institute for Occupational Health has primary responsibility for ensuring that workers of age are respected and indeed their skills are utilised within the workplace. The Finnish Institute ran a pilot project in the Kuoppia region which included coaching programmes on age power to work aimed at improving the capabilities of managers to solve age-related issues in the workplace. This was part of a broader programme “Developing health - promoting criterion for social and healthcare” which looked at ways and means for work providers to think creatively about utilising older workers.

A similar thing was adopted in Germany where, faced with labour shortages the government adopted a highly flexible approach by introducing a mix of systemic changes, namely the inter-relationship between pension and benefits to encourage older employers to say within the workplace. This was cemented by positive role models, for example,Deutsche Bahn. Deutsche offered a deal to older employees that allowed employees to swap for example 13% of salary for additional 9 weeks’ holiday. In many ways, the problem in Germany was due to the fact there were beneficial early retirement schemes which was reducing the labour supply but innovative solutions have been sought.

It is not unforeseeable, even with the drop off of employment tribunal claims that those workers believing that they have suffered less favourable treatment on the grounds of age will try and protect themselves via litigation. In order to engage with staff, UK work providers are advised to:-

• Look at their policies and practices in relation to age discrimination; • Gather information as to respective age profiles within the organisation; • Identify opportunities to ensure that older workers are placed in a position whereby they can still develop their skills, contribute to the work of the company and the skills development of the company going forward; • Listen to older workers as to what requirements they actually have; • Implement those scheme, monitor and engage with staff to insure that they are rolled out; • Hold them out as role models within the organisation to encourage other employers to adopt similar strategies.

It is clear that with an aging population and financial instability that people are going to have to work longer in whatever format. If UK employers can meet the challenges now then it will equip them well for future issues that they may face.

David Gibson is a Partner at Short Richardson and Forth LLP. Please feel free to contact him at dg@srflegal.co.uk

This was posted in Bdaily's Members' News section by david gibson .