Employers face age law litigation wave


Employers in the UK risk a tidal wave of litigation when new laws designed to prevent age discrimination into force in October, a new report has warned.

The new rules, which make discrimination against workers on the grounds of their age illegal, will have a "huge impact", said legal expert Michael Rubenstein, co-editor of Equal Opportunities Review.

"Almost any HR policy or practice, term or condition, is likely to have a discriminatory impact on one age group or another. It would be surprising if practices had the same impact on differing age groups – and that disproportionate impact will result in indirect discrimination unless employers can prove that the practice is justifiable."

Employees in their 40s and 50s who are dismissed are likely to consider whether their age had anything to do with it, he said – and the prospect of unlimited compensation in discrimination cases may encourage them to question this in the tribunals.

Younger employees will also benefit from the legislation – they will question the need for formal experience to do a job, and may challenge the stereotype of the need for maturity to hold senior positions.

But the paradox of the Regulations, Rubenstein argued, is that the group most likely to be discriminated against on grounds of their age – those in their mid-60s and over who have been thrown out of their job before they were ready to go - will not be able to challenge their dismissal, or a refusal to consider their applications when they apply for other work.

"As a result of the Government's decision to capitulate to the CBI (Confederation of British Industry) and introduce a default retirement age, those aged 65 and over are completely excluded from complaining about mandatory retirement, or about being discriminated against on grounds of their age when applying for jobs.

"It is expected that the default retirement age won't last for more than 10 years, but until then, the paradox of our age discrimination legislation is that it will benefit every age group but those who most need it."

Lawyers have warned that the effects of the legislation are likely to be far reaching because age discrimination can affect anybody of any age, meaning that all employment practices will need to be tested for any inherent ageism.

In the United States, age discrimination cases are increasing at a faster rate than any other form of discrimination claim and Rubenstein said that the new regulations would mean a similar trend happening in the UK.

According to the Employers Forum on Age (EFA), if all those in Britain who claimed to be victim s of age discrimination in the workplace pursued claims under the new laws, total payouts could amount to £73 billion.

In the first year of the legislation alone, it is estimated that UK employers could be facing legal claims in the region of £193 million.

Meanwhile Caroline Carter, a partner with employment law firm Ashurst said that she suspected that come October, "every single application to an employment tribunal will start to have age discrimination as a part of it."