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MedEconomics: How to ... Avoid age-related tribunal claims

Practices should beware age discrimination complaints from job applicants and staff.

GP employers must be careful to avoid inadvertently discriminating against job applicants and existing staff on age grounds.

The Employment Equality (Age) Regulations outlawing age discrimination in the workplace have only been in force since October 2006 but look set to fuel a rise in claims to employment tribunals. By October 2007, according to the Employers Forum on Age, age-related claims were estimated to be 200 a month.

Recruitment
It is unlawful to discriminate against individuals of a certain age or age group when recruiting. This includes discriminating in the arrangements the surgery makes to determine to whom it should offer employment and to whom not to.

One particular danger is selection criteria that indirectly disadvantages younger applicants. If, for example, the practice imposes a requirement that a job applicant must have at least 10 years experience, this could well be discriminatory. In job advertisements, it is far safer for practices to state general skills and competency requirements.

Stipulating that the job requires working set hours including working late could also risk a tribunal claim. This may be age discriminatory because many people within a particular age group are more likely to have childcare commitments and be unable to comply.

Exceptions to the rules
There are broadly three areas of exceptions in the regulations. They relate to applicants over normal retirement age; where a characteristic relating to age is a genuine and determining occupation requirement and taking positive action to address a lack of age diversity in the workplace.

It is permissible to refuse to employ someone who is over or within six months of normal retirement age (or in the absence of normal retirement age, 65).

But a characteristic relating to age is not an exception that GP practices could successfully justify. It would only apply in special cases to people such actors or models. And if you do want to broaden the age range of staff, you should still accept applications from applicants of all ages.

Job advertisements
Age has long played a major role in recruitment advertising, but since the regulations were introduced it is, for example, no longer safe to state that candidates should be 'vibrant and energetic' because this implies a younger person.

Instead, consider only including absolutely necessary information about the job.

Sifting applicants
Consider carefully whether dates of birth and dates of education and qualification are really necessary in your application forms because these might give rise to tribunal claims.

Information about an employee's age or experience might not be age discriminatory in itself, but it could assist in inferring age discrimination.

The practice should carefully review its selection criteria prior to interview to check that it does not have any potential to breach the regulations.

A number of tribunal cases have been based on complaints in relation to the sifting process so anyone sifting job applications should be trained in equal opportunities.

Ideally, more than one person should sift applications to ensure no one has inadvertently discriminated.

With all aspects of age discrimination, claims can be won or lost on the basis of inferences which tribunals draw from the employer's conduct.

Interviews and job offers
It may be helpful to structure job interviews. You could, for example, compile a checklist for use during the interview to ensure all applicants are asked the same questions.

When making a job offer, the proposed terms should be the same terms of employment that you would offer to someone in a different age group.

Age discrimination is prohibited for the whole period an individual is employed, particularly in relation to terms of pay and other benefits, opportunities for promotion, information, training and transfer and the right not to be harassed on age grounds.

Employment benefits
Often, benefits are designed to reward loyalty and length of service. These might place younger workers at a disadvantage but, as an exception, benefits based on five years of service do not have to justified. There is a partial exemption for benefits based on service beyond five years, but this only applies if these reasonably fulfil business needs.

Unfortunately, the regulations provide little help on what would satisfy the business need test and so far there is no case law to provide guidance.

The choice is to continue providing the benefit while waiting to see if tribunal decisions justify it; or, if you withdraw the benefit, to risk a breach of contract claim.

Ms Brook is an associate in the employment team at Aaron & Partners in Chester (www.aaronandpartners.com)

ACTION POINTS

  • Familiarise yourself with the Employment Equality (Age) Regulations, October 2006 (www.agepositive.gov.uk).
  • Revise and update your recruitment and staff policies and procedures.
  • Avoid stipulating age group or years of experience in job advertisements.
  • Avoid any terms that imply you may be looking for or excluding certain age groups.
  • Do not stipulate that applicants must work set hours including working late.
  • When shortlisting for interview, two people should sift applications as a check for inadvertent age discrimination.

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