• silicon.com
• Management
• CIO Insights

By Jackie Luesby, 21 June 2004 09:00

COMMENT In conjunction with silicon.com's ageism in IT campaign, Jackie Luesby, a solicitor with Morgan Cole, looks at what to expect from the upcoming age discrimination legislation in the UK - and how employers should start preparing.

The age discrimination strand of the European Employment Framework Directive will be implemented in the UK in 2006. Member states are given a fair amount of discretion as to the exact terms of the legislation and in the UK we do not yet have a draft of the regulations – it's expected in early 2005.

However, extensive consultations have taken place with the Department of Trade and Industry and other member states that have already implemented age discrimination laws, so we do at least have a broad idea of the types of ageist attitudes in the workplace that the new legislation will outlaw and the form the legislation is likely to take.

We also have Age Positive, a campaign supported by the government to raise awareness of the upcoming legislation and communicate a voluntary code of conduct, which promotes best practice.

In the meantime, there is much speculation as to what the impact of the new legislation will be. As yet, we do not know:

• In exactly what circumstances age discrimination will be justifiable. What is clear is that this will require a shift in attitude by many employers.
• Where the burden of proof will lie. In sex discrimination cases, the employee only has to make out a basic case and the employer has to establish that he has not wrongfully discriminated - this is likely to be the case for age discrimination.
• Whether the new 'normal' retirement age will be extended to 70 or whether it will be abolished. If the latter, an employer may have to rely on a concept such as 'no longer fit for the job' before staff can be retired off.
• Exactly what areas of employers' policy and practice will be hit. Certain areas are obvious. For example, it is likely to be indirectly discriminatory to advertise jobs solely in magazines with a young readership such as certain fashion magazines.

Based on this, our advice to employers is as follows.

Be informed
The IT industry is dominated by youthful employees and it is interesting that of the 100 Age Positive 'Employer Champions' (of which Morgan Cole is one), there is only one IT company (BT).

To some extent it is not too surprising that there are fewer forty-somethings applying for jobs in IT when you consider that GCSE (or even 'O' level) IT studies have not been widely promoted in schools until recently.

To ensure that your organisation doesn't fall on the wrong side of law once the legislation is introduced, it is worth keeping track of the statistics. An organisation that can demonstrate that its workforce broadly mirrors the skills and training of the working population would be better placed before a tribunal than one that had no idea.

Be aware
There are practical and sensible measures to adopt in advance of the legislation to create greater awareness of unacceptable behaviour by IT managers and staff.

Adopting good habits now in an industry which, because of its predominantly young workforce, could leave its employers vulnerable to attack, is just good sense. For example, don't make the 'top salesperson of the year' prize a Club 18 to 30 holiday. You should also take a look at your job application questionnaire – don't include age or date of birth on it and review the language used in job advertisements. For example, the Age Positive code of practice makes clear that words such as 'lively', 'energetic' and 'trendy' have youthful associations and should therefore be avoided. Try 'fashion aware' instead of 'trendy' and 'outgoing' instead of 'lively'.

It's not all bad
One of the drawbacks of legislation that enforces a more diverse workforce is that an older workforce might cost an organisation more money in terms of permanent health insurance, private medical insurance, life assurance and final salary pension schemes. However, the IT industry has not traditionally been one that provides large benefit packages. This would suggest that the industry would have to dramatically change the predominant age of its workforce and its traditional benefits before it feels the impact of the new legislation in the way that many other industries might.

At the end of the day, the legislation requires an employer not to discriminate on the grounds of age, so relevant experience and skills are still perfectly valid reasons to employ or promote.

Also, there are many positive commercial benefits that a more age diverse workforce could bring, especially when it comes to product development - we are an ageing population after all. For example, when are mobile phone companies going to bring out a phone that my 75-year-old mother can use easily? Arthritic fingers can't manage small buttons and she definitely doesn't need a raft of games or a fancy ring tone - just a loud one.

Jackie Luesby is a solicitor in Morgan Cole's Employment, Pensions and Benefits group. Morgan Cole is an Age Positive 'Employer Champion' and is running an awareness-raising campaign comprised of a programme of regular updates and employment forums. They will be reporting on the detailed legislation as soon as it is published. To subscribe to the regular employment updates contact Celeste Ainge at celeste.ainge@morgan-cole.com