Business Essentials: 'Will we be sued because we're young?'

An information firm in Brighton is fearful that it will fall foul of new anti-ageism laws, says Kate Hilpern
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The Independent Online

In an attempt to put a stop to ageism in the workplace, which research repeatedly shows is on the rise, the Government has decided to outlaw age discrimination, with legislation coming in 2006. However, it also decided last week that companies have to let staff work until they are 65, if they want to. Little wonder, then, that many business owners are confused, or that those with a young age profile among their staff are getting anxious.

Broadcast Publishing - a business information company that produces magazines, runs websites and hosts trade shows and exhibitions - is among them. "We have 15 employees all based in Brighton, which is a town with a young demographic make-up," says Ian Nuttall, its managing director. "So it's inevitable that our workforce reflects this age group."

He cites other reasons why the average age of employees at Broadcast Publishing is under 30. "We are a company operating in the creative media sector, which tends to attract younger people. We also find young staff are easier to train.

"In fact, we've enjoyed bringing in people who are completely fresh to publishing, as then they can grow and develop with the company. A lot of people who have been in the publishing industry for a long time, on the other hand, often don't tend to adapt so well to non-paper formats like the web."

Mr Nuttall adds that he has also found young workers to be more flexible in their attitude to travelling on business. "I must admit it saves us a concern on the medical front too. If we were to take on much older people, it could be a worry for me when they had to go abroad."

Once the anti-ageism legislation comes in, Mr Nuttall is fearful that he will be seen not to be complying. "Smaller companies are always more vulnerable when it comes to employment law and I'm genuinely worried that we'll get discrimination or unfair dismissal claims. I don't know how we should prevent that from happening."

In addition, he is anxious about the potential administrative overheads. "I'm not sure how long it will take us to come to terms with the new legislation," he explains, "and whether it will have any implications financially."

Mr Nuttall is particularly curious about whether employers will be able to ask for medical histories from potential new recruits. "It makes sense to me that if I am taking on responsibility for people, and there's a chance I could need to send them abroad, then I should be allowed to make sure they are in good health."

He also wants to know if the new legislation will have any exclusion areas that he will be allowed to exploit.

"I have read that certain jobs won't have to comply with the new law, such as air traffic controllers who need high levels of fitness and concentration," says Mr Nuttall. "I would say that jobs here require high levels of fitness and concentration too, so where does that leave me?"

It's not that he is against employing older people, insists Mr Nuttall, who fully supports the trend towards age diversity in the workforce. "But there are a variety of factors that mean we do tend to employ younger people. Our oldest team member is 41, while the youngest is 23."


Sam Mercer, director, the Employers Forum on Age

"It is good to hear such a concise description of the stereotypes held by many employers. Mr Nuttall is really saying that older people - in this case, anyone over 30 - don't live in Brighton, are not creative, are incapable of learning anything new, inflexible, unhealthy and unable to travel or concentrate. None of these stereotypes stand up to scrutiny. In fact, age is a poor indicator of an individual's ability or fitness levels.

"He is right to be concerned that his policy of only recruiting younger people will lead to problems when the age discrimination laws come into force. Arguing that the levels of fitness and concentration required for a publishing job precludes older people will be impossible to defend in a tribunal.

"The best way for employers to protect themselves from discrimination claims is to ensure that they have fair and transparent procedures and that employment decisions are based on ability, not age."

Joanna Blackburn, partner, Mishcon de Reya (solicitors)

"Broadcast Publishing may be vulnerable to a claim of age discrimination, because the reasons that it gives for not employing older people will not be legally justifiable. The age profile of the workforce may also mean that discrimination can be inferred.

"If a comparison of the age demographic of its staff to the workforce generally in the Brighton area shows that its employees do not reflect the age make-up of the local working population, this may indicate discriminatory recruitment practices.

"Broadcast Publishing would need to justify the discrepancy on non-discriminatory grounds - by showing, say, that an older applicant did not have essential qualifications for the job.

"While it may ask for a medical history of applicants, the request would have to extend to all applicants, not just older ones. And if that history were to be used as grounds not to offer employment to older people, this might constitute age, or disability, discrimination.

"As damages for discrimination are uncapped, the firm must ensure that all applicants are assessed objectively, irrespective of age."

Dianah Worman, diversity adviser, Chartered Institute of Personnel and Development

"Mr Nuttall mentions that younger people are easier to train, more prepared to travel for business and tend to have better health. Organisations need to be careful about making these assumptions; it is important to recruit on the basis of the individual's capability to do the job.

"Research shows that people learn in different ways, and it is up to the organisation to ensure the relevant training, guidance and support is offered in order to motivate employees. In terms of travel, older people are less likely to have dependants and therefore may be more willing to go abroad. Also, statistics show that we are all living longer and healthier lives, so we must look at health in general rather than age.

"Organisations should start preparing and tackling age discrimination now. They need to be creative and open their doors to different people and new ideas. Having access to a wider range of perspectives and views may result in higher- quality ideas or solutions, in a creative or problem-solving environment.

"A policy of age diversity will help attract and retain good people, reducing the valuable time and money that is expended on the recruitment process, advertising and temporary staff. Good practices will help organisations retain knowledge and experience."