HR Summit

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HR Summit

• Owen Warnock
• Age Discrimination
• How to meet the challenge but minimize the pain

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Age Discrimination or been there, done that,
got the cardigan
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Popular misconceptions older generation

• An old person is a young person that has aged
• Tend to be female but some old men can also be
  found
• Smaller in height than younger people
• Distinguished by wrinkles
• Can often be found at
• Post Office
• Bingo Hall
• Bus Stop
• Family Fortunes studio audience
• First 5 seats on a double decker bus
• Funerals

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The Framework Directive

• Same pattern for all kinds of discrimination
• Standard pattern has some variations for age,
  disability and religion
• Minor changes to UK law on race, sex, disability,
  but little change in practice (eg definitions of
  harassment, indirect discrimination)
• New protected groups
• Religion and philosophical belief Dec 2003
• Sexual orientation Dec 2003
• Age Dec 2006. UK aiming for 1 Oct 2006

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What we know, and what we dont know

• Directive gives each government a lot of freedom
• What will the UK do?
• Age Matters consultation summer 2003.
• Proposed draft regs by now, finalised by end 2004
• Government proposals timid on use of ability in
  Directive to make exceptions
• Adverse employer reaction to proposals
• Rumours of considerable delay

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What the Directive says on age

• Direct
• Must not treat a person less favourably on the
  ground of age than another person is, or would
  have been treated, in a comparable situation
• Indirect
• Where an apparently neutral provision, criterion
  or practice would put persons of a particular age
  at a particular disadvantage compared with other
  persons
• Both are subject to exceptions
• Harassment now an express definition

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The Directive Indirect Discrimination

• Indirect
• Where an apparently neutral provision, criterion
  or practice would put persons of a particular age
  at a particular disadvantage compared with other
  persons
• The usual exception
• The provision, criterion or practice is
  objectively justified by a legitimate aim, and
• The means of achieving that aim are appropriate
  and necessary

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What the Directive says on age

• Direct
• Must not treat a person less favourably on the
  ground of age than another person is, or would
  have been treated, in a comparable situation
• Indirect
• Where an apparently neutral provision, criterion
  or practice would put persons of a particular age
  at a particular disadvantage compared with other
  persons
• Both are subject to exceptions
• Harassment now an express definition

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The Directive Exceptions 1

• Direct and Indirect Discrimination
• Exception One - GOR
• Member states may permit difference in treatment
  based on a characteristic related to age if
• the characteristic is a genuine and determining
  occupation requirement, and
• the objective is legitimate, and
• the requirement is proportionate

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The Directive Exception 2

• Direct and Indirect Discrimination
• Exception Two
• Member states may provide that differences in
  treatment on ground of age is legal if
  objectively and reasonably justified by a
  legitimate aim including
• employment policy objectives
• labour market objectives
• vocational training objectives
• Such differences of treatment may include, among
  others

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Exception 2

• Special conditions on access to employment and
  vocational training, including dismissal and
  remuneration conditions, in order to promote
  vocational integration or ensure protection of
• Young people, older people and carers
• Minimum conditions of age, experience or service
  for
• Access to jobs
• Job-linked advantages
• Maximum age for recruitment where training is
  necessary so as to get a reasonable period of
  employment before retirement

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Exception 2
"Objectively and reasonably" justified and "Means
appropriate and necessary"

• Special conditions on access to employment and
  vocational training, including dismissal and
  remuneration conditions, in order to promote
  vocational integration or ensure protection of
• Young people, older people and carers
• Minimum conditions of age, experience or service
  for
• Access to jobs
• Job-linked advantages
• Maximum age for recruitment where training is
  necessary so as to get a reasonable period of
  employment before retirement

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The Directive Exception 3

• Exception Three
• Member states may provide that for retirement
  pensions and invalidity benefits, there can be
• Ages for admission
• Ages for entitlement
• Age used in actuarial calculations

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The Directive Exception 4

• Exception Four
• Recital 14 This Directive shall be without
  prejudice to national provisions laying down
  retirement ages

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Age Discrimination

• Will protect the old and the young
• Employees and workers
• Limited to employment field
• Covers
• Recruitment
• Terms and conditions
• Promotion, transfer and training
• Dismissal and retirement
• Harassment
• Victimisation
• Post-employment discrimination

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Direct Age Discrimination Government Plans

• Less favourable treatment on grounds of age or
  perceived age
• Genuine and determining occupational requirements
  which are proportionate
• Objective justification for specific legitimate
  aims
• Health, welfare and safety
• Facilitation of employment planning
• Training requirements
• Encouraging and rewarding loyalty
• Need for a reasonable period of employment before
  retirement
• Government appears to intend employers to have to
  justify point by point

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Examples?

• The 80 year old pilot
• Succession planning
• Long training
• Pay based on length of service

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Examples?

• The 80 year old pilot
• Succession planning
• Long training
• Pay based on length of service

Point by point "Objectively and reasonably"
justified and "Means appropriate and necessary"
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Indirect Age Discrimination Government Plans

• A provision, criterion or practice
• Which disadvantages persons of a particular
  age/age group
• Subjecting a person to a detriment
• Which is not a proportionate means of achieving a
  legitimate aim

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Other Areas of Protection

• Harassment
• Unwanted conduct with the purpose or effect of
  violating their dignity or creating an
  intimidating, hostile, degrading, humiliating or
  offensive environment
• Victimisation
• Post employment discrimination

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Impact on Legislation

• Unfair dismissal
• A new fair reason legitimate retirement age
• Is it automatically fair?
• Basic award
• Redundancy calculation

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Typical issues that will arise

• Recruitment
• Service-related pay and benefits
• Pension scheme rules
• Implications of
• older workers
• no, or higher, retirement age

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New employees

• Recruitment
• Pre-employment medicals
• Graduate recruitment
• Age requirements
• Young image
• Preference for older calmer workers
• Unjustifiable requirements
• University education
• Years of experience
• Application form
• DOB?
• Employment history?
• Monitoring

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Issues for Employers

• Service or age related benefits
• Annual increments
• Long service awards
• Extra holiday
• Sabbaticals
• Sick pay
• Benefits that cost more/are worth more for older
  workers
• Medical expenses insurance
• PHI
• Life insurance
• Indirect flexible working only available to
  parents?
• Could they be proved justified?

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Pensions issues

• Govt. will use exemptions to allow pension
  schemes to have a Normal Retirement Age
• Age/service linked entitlements to benefits
• Waiting periods
• Salary/grade thresholds
• Unreduced pension on early retirement
• Actuarially reduced pension on early retirement
• Prohibition on future accrual if member remains
  in service past NRD

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Issues for Employers

• No retirement age or higher retirement age
• Workforce planning
• Will employees stay longer?
• Health and safety assessing fitness rather than
  assuming ability declines with age at same speed
  for all
• Cannot rely on retirement to dispose of poor
  performers
• Improving performance management to tackle those
  slowing down or getting stuck in their ways
• Interplay with other rights
• Eg Disability /or sex discrimination, handling
  ill-health dismissals

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Managing the older worker - capability

• Wide variation in age that capacity diminishes
• Depends on individual and job
• Life expectancy risen by nine years in last half
  century
• Age at which infirmity of old age shows risen
  faster
• Majority of 65 year olds no decline in mental
  capacity

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Managing the older worker

• Health Safety
• - Reasonable adjustments
• - Assessment of risk of the job and
  individuals capabilities
• - Manual handling programmes

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Managing the older worker - Training

• Training
• - Styles and training methods
• - Mentoring programmes / coaching
• - Career management programmes
• - Graduates
• - Ability to deal with change
• - Aid in succession planning

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Managing age diversity the flexible workforce

• Flexibility
• - Working hours / patterns
• - Job role flexibility
• Career management for advancing careers and
  individual downsizing.

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Managing the older worker

• Performance management procedures
• - Transparent
• - Well documented
• - Consistent
• - Re-think or review these policies
• Other tools
• - Job profiles
• - Competency frameworks
• - Appraisal formats
• - Job design

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Life expectancy in the UK...
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The age mix in the UK
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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

NOW
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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

NOW
NOW
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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

NOW
NOW
NOW
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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

NOW
NOW
NOW
NOW
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Age discrimination action now?

• Recruitment direct and indirect discrimination
• Person specs.
• Advertisements content, language and medium
  used
• Recruiters preconceptions (internal and external
  recruiters)
• Recruiters ages
• Equal Ops monitoring
• Paperwork to prove your case
• Training for managers (especially recruiters)
• Enhancing management of poor performance
• Capability policies
• Are appraisals forms brave enough?
• Training and support for managers
• Audit to assess size of potential problem
• Service- and age-related pay and benefits
• Pension issues

NOW
NOW
NOW
NOW
WAIT
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HR Summit

• Owen Warnock
• Age Discrimination
• How to meet the challenge but minimize the pain