黑洞社区

White men of construction: your time has come. No longer must you remain at your desks while others win five-figure compensation claims in employment tribunals on grounds of race or sex discrimination. From 1 October, you too can have your day in court as the EU鈥檚 new age discrimination laws come into force.

Whereas earlier legislation on sex, race, disability and sexuality discrimination have not had a huge impact on the overwhelmingly white and male construction industry, age is expected to make a much bigger splash. The Employment Equality (Age) Regulations 2006 apply to every worker from school leavers to retirees and relate to just about every interaction between companies and their staff. What鈥檚 more, claims can be unlimited.

All this has some employers quaking in their boots. Lawyers, meanwhile, are gleefully anticipating a litigation frenzy and bandying around phrases like 鈥渢he biggest piece of employment legislation in 30 years鈥�.

鈥淭he legislation is so complicated that it鈥檚 going to lead to a rash of frivolous and malicious unfair dismissal claims. The employer will have to pay its legal costs whereas the employee can get legal aid,鈥� worries contractor Colin Harding. 鈥淭hey鈥檙e very distracting, these cases, and they have to be taken seriously because claimants nearly always have legal representation.鈥�

In their simplest sense, the regulations make it illegal to treat anybody differently on account of their age. But the way they are implemented is far from straightforward.

The rules outlaw a range of common employment practices, such as specifying how many years of experience job applicants must have, rewarding long service with extra holiday or adopting a policy of last-in, first-out for redundancies. Employers can still do these things, but they will have to prove there is a 鈥渃ore business reason鈥� for doing so. 鈥淚t鈥檚 going to be jolly, jolly hard,鈥� warns Edward Goodwyn, a partner in the employment department at Pinsent Masons. 鈥淭he guidelines make that perfectly plain.鈥�

Retirement is one of the biggest issues: employers will have to adhere to a strict prenotification procedure of letter writing, hearings and appeals 鈥� or it will automatically be considered unfair dismissal (see 鈥淔ive new ways to break the law鈥�, below).

The legislation is so complex it鈥檒l lead to a rash of frivolous and malicious unfair dismissal claims

Colin Harding, George & Harding

Such a wide-ranging law also throws up unexpected contradictions. 黑洞社区 columnist and Gleeds senior partner Richard Steer complained three weeks ago that the regulations remove the retirement date from partnership contracts and could cause stagnation and recruitment problems for practices set up in this way. Companies are also bracing themselves for the impact on the complex area of pensions, although they鈥檝e got until December to comply there.

The regulations cover not only direct but indirect discrimination. For example, requesting that job applicants have five years鈥� experience discriminates against people under 21 who have not been working for that long, and specifying that they must be a graduate is unfair to people over 50 who are less likely to have gone to university.

It鈥檚 impossible to know how strictly the rules will be implemented. Hundreds of pages of guidelines have been produced but, like previous employment legislation, it will all depend on case law. 鈥淭he big question is how litigious people will be,鈥� says Goodwyn.

It is hard to gauge how ready the industry is for the regulations. While most companies claim they鈥檙e up to speed or that much of the legislation is common sense and they were doing it anyway, a quick scan of the job ads in 黑洞社区 still reveals turns of phrase that will be risky to use come Monday.

For larger companies with dedicated human resources departments, complying with new law is all in a day鈥檚 work. Andrew Edge, the head of HR operations at Bovis Lend Lease, has spent about five months preparing. 鈥淚鈥檓 very close to signing off a new application form. It鈥檚 no longer mandatory to disclose your age, but we do have to monitor to make sure the age of people who are appointed doesn鈥檛 differ significantly from all those who applied. There will be a bit you tear off [the form] before it goes further in the process.鈥�

Age or time served in the company will no longer be a factor in choosing which Bovis staff are sent on training courses. Edge is also about to kick off a 拢10,000 programme to train managers in how to apply the rules when recruiting employees.

He believes, though, that construction will have less difficulty complying than other industries where he鈥檚 worked. 鈥淚n this sector, experience and grey hair count for something, much more than in retail. A lot of clients like the comfort factor of dealing with people not in the first flush of youth who鈥檝e seen problems before and know how to tackle them.鈥�

In recruitment ads you will have to say less and less 鈥� it will have to be pretty bland. You can鈥檛 use words like 鈥榡unior鈥� or 鈥榮enior鈥�

Bel Appleby, Ridge

At Ridge, a multidisciplinary consultant with a staff of 180, HR manager Bel Appleby has also attended briefings with lawyers. 鈥淎 lot of them are scaremongering. But it is going to be difficult, we鈥檙e going to have to be more aware.鈥� She agrees that recruitment will be most affected. 鈥淵ou have to say less and less 鈥� it will have to be pretty bland. You can鈥檛 use words like 鈥榡unior鈥� or 鈥榮enior鈥�.鈥�

Ridge already allows staff to work on past 65, but Appleby gives one area where firms might want to discriminate against older job seekers: succession planning. 鈥淵ou start recruitment for a successor two or three years before someone very senior leaves the business. If you鈥檝e got someone in their sixties, you鈥檙e not going to recruit someone of the same age to replace them.鈥�

It is the industry鈥檚 many smaller firms, without the resources to hire HR teams and lawyers, that are in gravest danger of falling foul of the law. 鈥淭here鈥檚 a lot of fear in the small business community,鈥� says Simon Briault, spokesman for the Federation of Small Businesses. 鈥淭hey don鈥檛 really understand their obligations because the way the legislation is drafted is so woolly. They will probably find themselves sitting in employment tribunals. It could be very disruptive and for construction firms with tight margins it could be the end of the road.鈥�

For these firms, retirement will be the biggest flashpoint, believes Goodwyn. Failure to follow the prenotification procedure means firms will automatically be liable for four to six weeks鈥� pay. 鈥淲ith the timeframes and all the meetings you have to hold, it will be easy to trip up on red tape. If the systems aren鈥檛 set up, reminders won鈥檛 be triggered. It鈥檚 easy to make a hash of it,鈥� says Goodwyn.

Gerry Lean, industrial relations director at the Construction Confederation, agrees. 鈥淚t places a pretty significant administration burden on employers. How many smaller firms are going to do this? Most only wake up the week before the bloke鈥檚 65th birthday.鈥�

Of course, the amount of trouble firms get into will depend on how willing people are to bring claims against them. In a survey carried out in August by recruitment consultant Poolia Parker Bridge, three-quarters of under 25s were aware of the legislation, compared with just under half of 45 to 54 year olds. Nevertheless, claims are more likely to come from older staff who have less to fear from blotting their copybook with future employers. In this survey, one in eight of the 45 to 54 age group said they had suffered some form of ageism.

鈥淎 lot comes down to awareness of rights,鈥� says Richard Linskell, an employment partner at Dawsons Solicitors. 鈥淧eople are generally aware that they have more employment rights, but it鈥檚 whether they put two and two together and realise they鈥檝e got a claim.鈥�

Lean thinks they will. 鈥淲e live in an increasingly litigious society,鈥� he says. 鈥淕uys get down the pub, someone says I鈥檓 going to claim for this, no-win, no-fee lawyers obviously ramp it up and these things get their own momentum.鈥�