Age legislation: implications for staff
What age legislation means for staff in higher education
Higher education institutions (HEIs) should ensure they have specific policies and procedures in place in order to address any issues that may arise throughout the employment relationship.
Recruitment
HEIs should review their advertisements and other materials to ensure there is no prejudicial language. Requesting ‘mature candidates’ is misleading and could be viewed as discriminatory. Requesting ‘candidates with a mature approach’ is more accurate, and does not inadvertently dissuade certain age groups from applying.
There is a temptation to assume that people relate best to others of a similar age group. There is no supporting evidence for this, so HEIs should ensure they take into consideration only ability to do the job.
Retirement
HEIs need to ensure the proximity of a retirement date is not used as an excuse to avoid performance or competency issues.
Special arrangements are in place to deal with retirement dates. An employer who intends to retire an employee has a duty to notify the employee in writing of that intention, the intended retirement date, and the employee’s right to request to be considered for continued employment. The employer should send this notification not less than six months and not more than one year before the intended date of retirement. If the employee wishes to be considered for continued employment, the employer must consider the request carefully, hold meetings with the employee to discuss continued employment and deliver the answer in writing with reasons for any refusal if necessary. An employee will have a right of appeal against any refusal to continue employment.
At the moment, compulsory retirement is viewed as a proportionate way of achieving the purported legitimate aim of workforce succession planning. This has been challenged by the Heyday case. The European Court of Justice has recently clarified in Heyday how the legislation should be interpreted. If a compulsorily retired employee wishes to challenge the decision, they must lodge a case within three months of the retirement. No cases will be heard until the High Court has interpreted the ECJ ruling in the Heyday case. There is therefore a risk that compulsory retirements may be found to be unsafe several years after they occurred.
Dependant care
In recent landmark cases, it was decided that employees taking time off work to care for disabled relatives can rely on equality legislation to protect their job. There was a view that this principle can extend to protecting those with caring responsibilities for elderly relatives. Employers would be advised to review their special leave arrangements in light of this development.
Example
A selection panel is appointing to an academic post in a department. One of the criteria for the post is that the appointee will be able to contribute to the development of new programmes of study and to the research output of the department. A member of the panel expresses reservations about the application of a candidate in their early 60s, expressing reservations about their having sufficient drive and energy to be able to make this contribution to the department. They suggest that, at this stage, the candidate surely is winding down.
This indicates stereotypical assumptions linked to age, and does not focus on the candidate’s ability to undertake the duties required based on skills and ability. A decision not to appoint on such assumptions would be likely to be unlawful age-related discrimination.