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All things Pharma

Pharma enters a new age: assessing age discrimination

New age discrimination regulations came into force on October 1st, presenting the pharmaceutical industry with what employment law specialists have described as one of the most far-reaching pieces of legislation to affect the workplace in the last 30 years. Pf looks at the new regulations and what they mean for you and your employer.

IN SIMPLE TERMS, the new age discrimination measures do exactly what they say on the tin. They make it illegal for employers to discriminate against employees because of their age – this not only concerns recruitment issues but also areas such as vocational training, the award of professional qualifications and trade union membership.

According to Jonathan Bruck of B P Collins solicitors, the legislation may call for extra caution in some surprising areas: “The measures cover victimisation or harassment, so sending joke ‘over the hill’ birthday cards to staff may be unwise! Whether you view the new regulations as excessive or an inevitable and necessary piece of protective legislation, if you are an employer, you should certainly sit up and take note: there is no limit on the compensation available to an aggrieved employee who succeeds at a tribunal.” So what do the Regulations mean? It is unlawful for an employer to:

• treat staff less favourably on grounds of age in its recruitment methods, in refusing to offer employment, in its terms of employment, in respect of promotion, transfer or training opportunities, or in dismissing an employee
• indirectly discriminate by applying a policy or work practice (which otherwise applies equally to all staff) and, by so doing, place an employee of a particular age group at a disadvantage when compared to other employees of other age groups.

Such treatment may be allowed if it is a “proportionate means of achieving a legitimate aim”, but until case law can provide specific guidance, relying on this justification could be risky. The Regulations also provide for circumstances in which retiring an employee could amount to discrimination and/or unfair dismissal. The compulsory retirement of an employee before the age of 65 is now unlawful unless it can be objectively justified, although a dismissal by reason of retirement over the age of 65 would not constitute unlawful age discrimination. However, employers must be sure to follow carefully the procedures laid down in the Regulations, which include providing the employee with between six and twelve months notice of dismissal.

Employees have the right to ask to work past retirement age and employer and employee need to follow a set statutory procedure in dealing with such requests. Failure to do so will, in certain circumstances, make a dismissal automatically unfair. Significantly, the age limit on bringing a claim for unfair dismissal and entitlement to statutory redundancy pay has been removed.

In Ireland (where age discrimination provisions were introduced in 1998), age discrimination was the third most commonly cited ground of discrimination after gender and race in 2004, with over 25% of equality cases including age as a ground. Many believe that the UK will be impacted in the same way.

The measures are tipped to have huge significance on the employment market, particularly as the latest projections from the Office of National Statistics indicate that a third of the labour force will be over 50 years of age by 2020. Patricia Davies, Marketing Manager, GBS Corporate Training, believes that many companies remain ill-prepared for the new legislation. “HR departments in all sectors need to understand how the legislation will affect their workforce, and how they can ensure they take the lead on these issues,” she says. “The Government’s legislation highlights the growing economic worth of an older workforce. With the average UK life expectancy now approaching 80, organisations must recognise that older employees often have the same drive and enthusiasm as younger employees, complemented with a wealth of experience and knowledge. It is particularly important to know in what way individual job profiles can be changed to take into account the different ability levels of older employees.” Jonathan Bruck fears a wave of US-style litigation should companies fail to respond. “Time will tell whether the Regulations will mark the beginning of a ‘new age’ for employee rights in this country, but employers must now ensure that their policies and practices are compliant, to minimise the risks of a costly ‘coming of age’.”

What the regulations mean to you

Am I protected against discrimination because of my age? Yes. You are protected against direct and indirect discrimination. It is unlawful on the grounds of age to:

• decide not to employ you
• dismiss you
• refuse to provide you with training
• deny you promotion
• give you adverse terms and conditions
• retire you before your usual retirement age without justification.

Is it ever legal to discriminate against someone because of their age? There are limited circumstances when it is lawful to treat people differently because of their age. For example, it is not unlawful to discriminate on the grounds of your age:

• if there is an objective justification for treating people differently – for example, it might be necessary to fix a maximum age for the recruitment or promotion of employees (this maximum age might reflect the training requirements of the post or the need for a reasonable period of employment before retirement)
• where you are older than, or within 6 months of, the employer’s normal retirement age, or 65 if the employer doesn’t have one, there is a specific exemption allowing the employer to refuse to recruit you.

Do I have the right not to be harassed because of my age? Yes. Harassment includes behaviour that is offensive, frightening or in any way distressing. It may be intentional bullying which is obvious or violent, but it can also be unintentional, subtle and insidious. It may involve nicknames, teasing, name calling or other behaviour which is not with malicious intent but which is upsetting. It may be about the individual’s age or it may be about the age of those with whom the individual associates. It may not be targeted at an individual(s) but consist of a general culture which, for instance, appears to tolerate the telling of ageist jokes.

Who is responsible for harassment? Employers may be held responsible for the actions of their employees – as well as the employees being individually responsible. If you harass someone you may be ordered to pay compensation. When deciding if you have been harassed, how you feel about what has happened to you is very important.

ACAS Examples

•Whilst being interviewed, a job applicant says that she took her professional qualification thirty years ago. Although she has all the skills and competences required of the job holder, the organisation decides not to offer her the job because of her age. This is direct discrimination.
•A job applicant can make a claim to an employment tribunal, it is not necessary for them to have been employed by the organisation to make a claim of discrimination.
•A young employee is continually told he is ‘wet behind the ears’ and ‘straight out of the pram’ which he finds humiliating. This is harassment.
•An employee has a father working in the same workplace. People in the workplace often tell jokes about ‘old fogies’ and tease the employee about teaching ‘old dogs new tricks’. This may be harassment on the grounds of age, even though it is not the victim’s own age that is the subject of the teasing. For more information on the new laws, visit www.acas.org.uk

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