AGE DISCRIMINATION

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• AGE DISCRIMINATION
• Clive Howard
• Russell Jones Walker

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Employers Forum on Age

• Forward Thinking Employers
• - Proactive
• - Avoid using age wherever you can
• - Transparency

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But such employers are rare
The World Post October 2006One Sector -
Advertising2 Types of Claims- Termination of
Employment (not retirement) - Recruitment
Process

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Background

• Average age of workforce is below 34
• 87 of agency workers are under 40
• 96 of staff are under 50

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Awareness in the industry is mixedIPA
campaigns butCompany knowledge?Job
AdvertscfCampaign Articles - extensive
feedback
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Conclusion significant impact of the
legislation - employers are vulnerable and the
employees are ready
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SCENARIOSClient is a male creative age
41Works with another in a team of 2 The other
is aged 4320 teams in Agency2 teams have
their employment terminated - including our
clients
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• 1. Reason for termination Redundancy
• Cost cutting
• Accounts have been lost
• Selected due to cost - our client is
  relatively highly paid

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Indirect Discrimination
Includes selection criteria which although
applied to all employees, has the effect of
disadvantaging people of a particular age unless
it is a proportionate means of achieving a
legitimate aim
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The Claimants argumentsProportionate? i.e.
appropriate and necessary ACAS - Guidance for
EmployersYou should have no reasonable
alternative to the action you are taking
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Legitimate? ACAS Guidance- might include
economic factors such as business needs and
efficiency- However Economic efficiency may
be a real aim but saving money because
discrimination is cheaper than non discrimination
is not legitimate
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CASE LAWe.g. Indirect sex discriminationEAT -
Cross v British Airways 2005 IRLR 423An
employer seeking to justify a discriminatory
provision cannot rely solely on considerations of
cost. He can however put cost into the balance
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COMPLEXBut..

• The Claimants case is up and running.

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2. Reason for termination burnout

• Direct Discrimination
• Less Favourable Treatment because of someones
  age
• Objective Justification?
• Unlikely
• Look at performance assessments, warnings

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3. Reason for termination new creative
director wants own people/fresh talent

• Lack of process
• possible arguments of direct/indirect
  discrimination
• People replaced tend to be long term older
  employees

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Strengthening the ClaimBackground Evidence

• Statutory Questionnaire
• Focus on
• - Age profile of company
• - Details of age awareness monitoring
  and training

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Focus on Culture

• Adverts,
• Job Descriptions, method of recruitment,
  promotions, procedures, performance appraisals
• Harassment as background evidence

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VALUE OF CLAIM is potentially very significant

• Our client will not be able to replace earnings
• Likely to become self-employed or work in a small
  agency
• Not going to be able to return to a major agency
  (although this career path could and should
  change over time)
• Client has little to lose cf Sex
  discrimination/city

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RECRUITMENT

• Our client is now back on the job market
• Potential claims will arise - see industry
  adverts in Campaign Magazine and elsewhere in
  May/June 2006

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EXAMPLES

• This really is a great opportunity for someone
  who enjoys working in a fast paced and busy HR(!)
  Department
• You must have around 1 year to 18 months
  experience in a busy and dynamic HR environment

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Based in modern offices in Central London, the
company is a young vibrant and forward thinking
company They are a young, funky, dynamic
on-line advertising company looking to recruit a
bright ambitious individual
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A young lively and confident individual to fit
in with the team environmentYou may be
straight out of college or you might have a
couple of years experience
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ACAS GuidanceAvoid references, however
oblique, to age. For example, avoid asking for
so many years experience.Avoid using language
that might imply that you would prefer someone of
a certain age, such as energetic.
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THE IRELAND EXPERIENCEAdverts will come
under scrutiny