Consultation over a code of practice

The Government has announced that there will be no law outlawing age discrimination in employment. This is an opportunity missed and a manifesto promise broken as reported in Issue 21 of LELR.

Instead of legislation we now have the draft voluntary Code of Practice, which employers will be encouraged to follow.

The Code is due to be published in its final form towards the end of March 1999, with a full review of its effectiveness by February 2001.

In his introduction to the draft Code, the Minister for Employment, Andrew Smith, points out that in ten years time nearly 40% of the workforce will be aged over 45, so that discrimination against older workers will have a severely detrimental effect on the skills and abilities of a company's workforce. Despite this, it was decided not to introduce a law against age discrimination, in part because the effectiveness of similar laws in other countries, most notably the United States, was open to doubt.

So instead we have a voluntary code, emphasizing the advantages to business of not discriminating. Divided into six sections, the theme of the Code is that employers should be alert to stereotypical assumptions about age; should make decisions based on skills and abilities alone and should not operate policies which either overtly discriminate or indirectly have an unnecessary adverse impact on either younger or older people.

Recruitment The Code recommends that age limits should not be included in job advertisements, and words which imply restrictions, such as "young graduates" or "mature persons", should be avoided. 
Selection Employers should ensure that interviewers are trained to ask questions which solely relate to the job in question, and that the interviewers themselves are, where possible, of mixed ages. 
Promotion Promotion opportunities should be advertised through open competition and should be made available to all staff, regardless of age. 
Training Training of all staff should be reviewed regularly, and age should not be a barrier to training. Employers should look at how training is delivered, and should ensure that different learning styles and needs are addressed. 
Redundancy Age should not be used as the sole criterion for selection of redundancy. Objective, job related criteria should be adopted, and options such as part-time working, career breaks or short term contracts should be considered as alternatives to redundancy. 
Retirement Retirement schemes should be based on business needs, whilst giving employees as much choice as possible. Age should not be the sole criterion when operating retirement schemes, and flexible schemes or phased retirement should be adopted where possible to allow employees to prepare for the changes to their lives that retirement will bring.

The Code in itself will have no legal force. Even the usual provision that tribunals must have regard to its terms in assessing, for example, the fairness of a dismissal (as in the ACAS disciplinary Code) is absent. Clearly time will tell whether the voluntary code will have any impact. Meanwhile we do have a number of tribunal decisions which have been used to challenge discriminatory practices.

In LELR 21, we reported the case of Nash v Mash/Rowe Group Limited, where the Sex Discrimination Act was used to challenge a normal retirement age of 65. Similar arguments were advanced over 20 years ago in Price v Civil Service Commission 1978 IRLR 3. Here the Sex Discrimination Act was again successfully used to challenge an age limit on recruitment, on the basis that it had an adverse impact on women who had taken years off work to look after young children.

In Secretary of State for Scotland v Taylor 1997 IRLR 608, reported in LELR 17, an equal opportunities policy committing the employer to offer opportunities on an equal basis "regardless of gender, race, religion, sexual preference, disability or age" was held to have been incorporated in a contract of employment, thus acquiring contractual force. However, the decision in Grant v South West Trains Limited (No2) 1998 IRLR 188 (LELR 21) went the other way and the equal opportunities policy was held to have no contractual force and was no more than a statement of policy.

So even though the Code itself may have little direct legal effect, it is to be hoped that it will push the issue of age discrimination up the agenda at the very least. And it may also encourage these other more indirect legal routes to enforcement.