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The generation game
From 1st October this year, when the Employment Equality (Age) Regulations 2006 came into force, it is now no longer legal to discriminate on the grounds of age without being able to objectively justify the difference in treatment.
Just when you thought employment guidelines couldn't get any more complicated, they have. Richard Findlay examines the potential pitfalls for employers…
'How do you feel being managed by someone younger than you?' is not something that employers will safely be able to ask at interview any longer. Jokes about the porter being 'past it' may be end up costing money and management time, not to mention adverse publicity.
Who, when and how to select staff, how you can treat them and what you offer them in terms of benefits will all be affected by the new legislation.
Adverts seeking a chef or barman 'with a minimum of 10 years' experience,' for example, will be hard to justify. Employers will have to concentrate instead on particular skills and competencies for the job. A suitable chef or barman with three years' experience is likely to have a claim on the grounds of age discrimination if he is turned down in favour of someone older but less competent.
Giving staff more holidays and benefits for length of service is now also subject to stringent restrictions. Get it wrong and you could face multiple claims.
Say, for example, an employer restructures and needs to make redundancies. If they select someone in their 50s and decide to retain the younger staff members, the person on the way out will have very little to lose in making a claim. They may well struggle to find work, so it will likely to be up to you to show that all your processes are fair and justified. If you can't you may be faced with a claim seeking reduced wages and pension contributions for the next 10 years or more.
The regulations also affect employers who use different rates of pay for staff in different age bands. Using such tiers for payment is still lawful but only in certain circumstances. Using the existing minimum-wage age bands, employers can pay different age groups more than the current minimum wage, provided they pay less than £5.35. If they should pay more, the exemption from discrimination claims no longer applies and the employer will have to be able to justify objectively why they are paying different rates to people of different ages doing the same jobs.
If, on the one hand, you pay all workers the same, there is no problem. However, employers cannot now pay a different rate to an 18-year-old who does the same job as a 20-year-old, unless they can justify the difference - which could prove a hard task.
So, if you thought employment legislation was intricate before, it just got a whole lot more complicated. Get it wrong and, like race and sexual discrimination, the potential damages are unlimited by any statutory cap.
For specific advice and assistance on any of the above issues, contact Richard Findlay at Tods Murray LLP on 0131 656 2276 e: richard.findlay@todsmurray.com
Richard Findlay
Partner & Head of Hospitality & Leisure Team
Tods Murray LLP
This article has been edited from its original version. For the complete feature please see Catering in Scotland magazine November/December 2006.
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