Risk & Economy » Regulation » Dispelling the myth of ageism

The new laws prohibiting discrimination on the grounds of age, which came
into force on 1 October, have prompted an outcry from the media. In fact, we
have probably not seen a reaction like this since the introduction of laws
prohibiting discrimination on the grounds of gender. Businesses throughout the
country have been left confused and concerned by reporting that has, at times,
been hysterical and inaccurate. Here we debunk seven popular myths that have
arisen around the legislation. For example:

I won’t be able to use length of service as a criterion when awarding

Joanna Lada-Walicki, legal member of UK200Group and associate at Barlow Robbins
LLP, says: “This is not quite right. According to the regulations, using length
of service to calculate an employment benefit will be lawful if its aim is to
recognise experience, reward loyalty or encourage motivation and the employer
reasonably concludes that there will be a business benefit in doing this and
applies the length of service criterion to all staff in similar situations.
Furthermore, a length of service requirement of five years or less does not need
to be justified and will be lawful.”

If one of my employees wants to carry on working after they turn 65,
all they have to do is ask me and I have to comply.

Judith Watson, head of employment at law firm Cobbetts, says: “An employer can
give the employee notice of an intended retirement date, at, or beyond, the
employee’s 65th birthday and, as long as they follow the correct procedure of
notification and consideration of any request received from the employee, they
can still refuse the request and dismiss the employee. They don’t even have to
give a reason why.”

I won’t be able to ask for a job candidate’s age in the recruitment

Smair Soor, a barrister at Seven Bedford Row chambers, says: “You will be able
to, but only if you’re asking for monitoring purposes, or because the job
genuinely needs someone of a particular age and that can be justified. In the
latter case, remember that very few job criteria are necessarily connected to a
person’s age.”

I can’t set a maximum age for recruiting or promoting

Sally Morris, a partner at mfg solicitors, says: “This is one of the few
circumstances under the new legislation when it is actually lawful to treat
people differently due to their age. This can be classed as an objective
justification, under which employers are permitted to set age requirements,
providing there is a proper reason. So, for example, it could be acceptable to
set an age limit where a set period of training is required for the role, or the
employer would need the employee to be in post for a reasonable period before
reaching retirement.

It will be impossible to target lower-level accountants and finance
professionals without using traditional industry phrases such as ‘part

Chris Herrmannsen, managing director of recruitment consultancy Ochre House,
says: “You will get the right person for the job by describing the skills and
capabilities for the lower-level roles. Years of experience and generic
age-related job titles will not provide you with the best candidates for the

I can’t use the university ‘milk round’ to recruit any more.

Matt Jenkin, employment lawyer at Wiggin LLP, says: “Employers are not
prevented from using the milk round to recruit. However, employers who limit
recruitment to the milk round only may be guilty of indirect age discrimination
unless this is objectively justified. Employers should use a broader recruitment
plan in addition to the milk round to ensure access to potential workers of
differing ages.”

This legislation has been brought in by meddling do-gooders in
Brussels and will be damaging to business.

Tony Bourne, senior partner and head of the employment department at Glovers
solicitors, says: “The UK has an ageing workforce. A decreasing birthrate
coupled with increased life expectancy means that by 2007 there will be more
people over state pension age than under 16 years of age. The country also has
an increasing economic dependency ratio. The support ratio of worker to
non-worker is currently 4:2, but it is anticipated that by 2031 this will rise
to 2:6. Businesses need to act now and this legislation is an important step in
the right direction.”

Case study: Merchants Consulting
Merchants Consulting runs contact centres in the UK, Europe and South Africa.
Its clients include Unilever and Edexcel and has 200 staff in the UK. Adrian
Garton, HR consultant, says that the company has always had an enlightened
approach to age in the workplace, seeing it as irrelevant, provided the
employee is capable of performing the role in question.

However, Garton is running training on the new age discrimination laws, not
to educate managers on how not to discriminate based on age, but to dispel
confusion that has arisen around what the new legislation means.

Garton explains: “Much of the reporting on thishas been wildly inaccurate. I
recently heard a self-professed expert on the radio claiming that we can’t use
the word dynamic in a job ad. This is simply wrong. The word dynamic is a
description that is not intrinsically linked to age, so there should be no
problem using it. Yet, our managers are now very confused about what they should

So, Merchants will be running workshops for line managers, covering the
legislation and what it actually means in practice. Garton says: “I’m actually
very excited about the new laws. I think they will force all businesses to focus
on capability rather than on age and this will have a very beneficial effect on
productivity in the UK.”

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