Following on from last week’s newsletter this is the third newsletter we will be sending you to bring you details of this impending change in law and guidelines on how your Company can manage these changes.

Recruitment and older workers

Recruiting new staff takes time and is expensive, so it is wise to get it right first time. Review your recruitment processes to ensure you are maximizing your chances of taking on the best possible candidates for the job. To do this, focus on the requirements of the job and not the age of the applicants. Workers of all ages, whether younger or older, can offer real business benefits.

To recruit and select candidates from all age groups, you should:

• Think about where you advertise- use a wide range of media to reach different age groups.
• Avoid using terms which are simply code for particular ages, such as ‘school leaver’ or ‘recent graduate’
• Think carefully before using terms that can be associated with particular ages, such as ‘mature’ or ‘energetic’. If you cannot show that these are real and necessary attributes for the post, and not related to age, then terms such as these should not be used.
• Include your equality policy in the advert and reference your commitment to age neutral policies.
• Only ask for experience or qualifications if they are essential for the job. Describe the type of experience that is required to do the job, rather than a number of years experience.
• Consider equivalent qualifications so you don’t exclude people of different age groups.
• Think flexibly about work patterns to help attract the best range of candidates. Many jobs can be done part time or flexibly.
• Do not make assumptions about a candidate’s ability to do a job based on their age, future capability or their length of service. Age is not generally a good indicator of potential return on investment.
• Check interview results to ensure no age bias, deliberate or unintentional has influenced the decision.

You can ask for an applicant’s date of birth on the application form to assess how effectively you are attracting candidates of all ages. It is good practice to keep this separately from the application to ensure the selection process is not influenced by age.

You are responsible for ensuring your recruitment agencies comply with age legislation.

You can set an age limit for a job which simply reflects the position set out in other legislation, i.e. where a job cannot legally be done by a person under or over a certain age. For example, serving alcohol or driving passenger vehicles. However, think about whether the job could be adapted first, for example, supermarket checkout staff can be younger than 18, where someone older takes responsibility for alcohol sales.

There are only a limited number of other exemptions where it is legal to set an age limit for recruitment. These are:

• where someone of a specific age is required for the job – this is called a ‘genuine occupational requirement’ and in practice this is unusual apart from, for example, acting in certain theatre roles
• in other specific circumstances an employer may be able to objectively justify an age-related restriction.

Important update to the new DRA regulations:

Following on from our first newsletter, there appears to be a drafting error (or deliberate change) in these regulations which means that if you issue a notice of retirement to those who are past their 65 birthday (or the normal retirement age if higher) by 6 April 2011 then you will not be protected from age discrimination or unfair dismissal claims.

The reason for this is that the transitional provisions say that the provisions on retirement will only continue to apply ‘in relation to the employment of a person’ if two conditions are met:
1. Notification of retirement has been given in accordance with the Age Regulations before 6
April 2011 (which we know, to be safe, should be by 30 March 2011)
2. ‘The person will attain the age limit during the period that begins with [6 April 2011] and ends with 30 September 2011’ . The ‘age limit’ is the age of 65, or the normal retirement age, whichever is the higher.
This means that if you serve a retirement notice on an employee who has already attained the age of 65 before that period (or higher if there is a higher normal retirement age) then you will not be protected.
This is different to the advice detailed in newsletter one which we sent out earlier to you this month.
This may be a drafting error which will be corrected in the final regulations but we will not know until the final regulations are published. This means that employers may have to issue notices to those over 65 before 30 March 2011 but be prepared to withdraw them if the regulations stay as currently drafted.
We understand that this can be confusing. If this is an issue that is likely to affect your Company please call us for advice.
As soon as we have anything further we will let you know.

Further Guidance:

Employment contracts will require reviewing to ensure that they are complying with the new legislation. In addition the legislation will impact on a number of employment policies for example; recruitment, and diversity and safety and therefore you should review and update your policies and the relevant sections of your Company handbook.

Contact People Business if you would like to discuss our fixed price options to update your contracts, employment policies and Company handbooks or if you have any questions about the DRA. Please email us at lisa.bolton@peoplebusiness.co.uk or call us on 01932 874944