Age Discrimination Law

The Employment Equality (Age) Regulations 2006 came into force last Sunday. Has anyone had any proper legal advice on this yet? I know one CX member has just had an investigation launched against him for specifying ‘over 21’ in a job advert for drivers.

There’s a ‘get-out’ in the legislation that allows employers to discriminate if it achieves a ‘legitimate aim’ which apparently means: “Economic factors such as business needs and efficiency. The health, welfare and safety of the individual (including protection of young people or older workers). The particular training requirements of the job.”

You need to be able to show, in writing, why a decision was made to discriminate and have actual hard evidence that supports the decision-making process.

The problem is that there’s no case law on this yet and until there is it will be down to individuals to decide whether knocking a few thousand pounds off an insurance premium is a good enough “business need” to justify discrimination. There doesn’t seem to be much agreement in the legal profession about this either.

Certainly saving a few thousand pounds a year would not be any justification for racial, sex or disability discrimination, so logically one might think the same would hold true for age discrimination, although the laws are worded very differently.

Posted under Employment

Posted by Alec at 5:26 pm, October 5, 2006

9 Comments so far

  1. Alec added on  October 5th, 2006 at 18:52

    But insurers don’t impose age limits – they say “we will only insure drivers over x years old” or “it will cost x amount for any age, y amount for over 21 only and z amount for drivers over 25”. It’s your choice which policy you choose.

    The new law only applies to the employer/employee relationship – not to a company’s relationship with their insurance company.

    IF it’s held to be unlawful for employers to impose lower age limits for driving then the very fact that an employer has an ‘over 25 only’ insurance policy would probably be enough to establish a breach of the new law.

    It’s likely to be at least a year before there’s any case law to establish a precedent on this so I suggest that everyone’s extremely careful in the meantime.

  2. Alec added on  October 6th, 2006 at 10:52

    No, they’ve thought of that, you’re not allowed to specify a minimum experience period if it can be directly linked to minimum age. Minimum 8 years experience means minimum 25 years old, so it’s not allowed.

  3. Alec added on  October 6th, 2006 at 17:11

    And, as is the case with sex, race and disability discrimination, if two people with similar experience apply for the same job and you reject the younger one you can be found guilty of discrimination. The fact that your insurance policy is for over 25s only will be brought to the attention of the court (or industrial tribunal in the first instance) and will guarantee that your guilt can be proven.

    This assumes that the argument that your ‘objective justification’ is a ‘legitimate aim’ and a genuine ‘business need’ doesn’t hold water of course.

    My personal opinion is that it should be OK to specify older drivers because of higher insurance costs, as long as you comply with all the red tape and keep a written record of your decision and proof of the ACTUAL FACTS that influenced your decision. It seems to be age discrimination with no valid reason that they’re aiming at – or discrimination with the unfounded reason that ‘you’re just a bit old/young for the job’. I think that any well thought out argument will satisfy them.

    Unfortunately it looks like it’s going to be down to a few early victims to fight the battle for the rest of us – or actually the rest of YOU, because I wouldn’t take on an employed driver if my life depended on it.

    I’m not a lawyer of course (so ignore me) and the three lawyers I’ve spoken to informally about this came up with entirely contradictory advice.

    Maybe someone that’s a member of the DA or RHA can get some formal guidance from them on this subject?

  4. Alec added on  October 6th, 2006 at 17:36

    And any arse that feels like making trouble can claim they’ve been discriminated against because of age and you’ll be in front of a court trying to explain away your ‘over 25’ insurance policy.

    There’s an old ‘tester’ trick that’s (hopefully) not all that necessary now: Asian bloke with experience applies for a job and ‘Redneck Couriers’ ignore his application. English bloke with the same or less experience applies for the same job the next day and is offered it. The employer is guilty of racial discrimination unless they can proove that another factor came into play.

  5. Alec added on  October 6th, 2006 at 18:08

    I’ve sat there and heard it happen Steve, in the last couple of years too.

    A) Asian bloke rings: “Sorry the job’s gone”

    B) Woman rings: “Sorry the job’s gone”

    C) English-sounding bloke rings: “When can you come in and see us?”

    Now if A,B C happen to know each other then that’s 2 valid claims for discrimination.

    I believe that the A & C scenario was very common in response to complaints in the 80s. The CRE(?) (or whoever) actually carried out test job applications to catch the people discriminating against blacks and asians.

  6. Alec added on  October 7th, 2006 at 15:27

    If an unsuccessful job applicant makes a complaint then it’s handled by the Industrial Tribunals, so they can bring the case themselves very easily without any legal representation; that’s what the Industrial Tribunals are all about. An unemployed person would normally be entitled to full legal aid anyway.

    In a 50/50 ‘balance of probabilities’ situation, the (easily verified) fact that an employer has insurance cover that only covers ‘over 25s’ would be enough to prove their guilt.

    That’s ssuming that the argument that’s already been outlined is unsuccessful of course. This extract from a DTI leaflet worries me though:

    “A wide variety of aims may be considered legitimate, but they must correspond with a reasonable need on the part of the employer. Economic factors such as business needs and efficiency may be legitimate aims, but arguing that it could be more expensive not to discriminate will not in itself be a valid justification.”

    That seems to shut the door on that line of argument I think.

    I think there’s a fully valid Health & Safety argument though – 17-25 year old drivers are more than twice as likely to be involved in an injury-causing road accident than other drivers – and that’s when most of them can’t get jobs as drivers because of their age.

    It would be really usefull if a RHA or DA member could get some guidance on this and publish it on here.

  7. Alec added on  October 7th, 2006 at 15:47

    They still have to be covered on your insurance though and you’re not allowed to specify age limits to the agency either.

    What’s more if the agency discriminates based on age then you’re responsible for that as well.

  8. Alec added on  October 7th, 2006 at 15:59

    Charging people to work for you? An interesting idea but illegal I think.

    Actually I see a business oportunity here. Sack all the old gits, take on a load of 18 year olds and charge them all £500 to start for you, then sack them all after the first week and pocket the cash.

    You’re not recruiting anyone anyway are you Steve?

  9. Alec added on  October 10th, 2006 at 07:07

    That’s just the problem Geoff. It’s perfectly possible to insure for drivers of any age – it just costs a bloody fortune. If all insurers REFUSED to insure under 25s it would solve the problem.

    The DTI guidance is very clear on this:

    “Economic factors such as business needs and efficiency may be legitimate aims, but arguing that it could be more expensive not to discriminate will not in itself be a valid justification.”

    I think the best way to go would be the Health & Safety angle. Government statistics show that under 25s are twice as likely to be invoilved in a serious road accident than over 25s, despite the fact that most of them drive much lower mileages than the average courier driver. You’re allowed to discriminate on Health & Safety grounds so it would just be a matter of acquiring the needed proof and keeping a written record of your decision and the reasons behind it.

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