Rolling back the years

In an increasingly competitive legal market, rivalry in recruiting and retaining the best quality staff is heightened. Given the wide variety of firms which exist, being noted as an employer of choice becomes ever more challenging.

One consequence likely to flow from the recent “Women in the Legal Profession” study is that individuals will expect far more from firms in relation to diversity and equality issues. The study – commissioned jointly by the Law Society of Scotland and the Equal Opportunities Commission – has raised awareness of the issues within the profession and prompted questions in areas of equal opportunities beyond gender. Age discrimination legislation is due to come into force in October and, while it was already set to cause real tremors, these have now been intensified.

Who is covered?

The regulations will give rights not only to employees, but also to office holders and self-employed, including partners in a partnership and advocates. 

Watch your job adverts

Experience in the Republic of Ireland – which has had age laws since 1999 – suggests that recruitment will be a particular hotspot for employers. Age discrimination claims now make up 22% of all Irish employment tribunal complaints, and this could be the shape of things to come here.

Job specifications should be reviewed in the first instance to ensure they are age-neutral. Should you wish to set an upper age limit on recruitment, this must be justifiable. The most likely reason to seek to do so is that, after completing the traineeship, you require an individual to spend a reasonable period as a qualified solicitor prior to retiring. So, for example, an upper age limit of 61 might be imposed on the recruitment of trainee solicitors where there is a retirement age of 65. This allows for a two year traineeship and then two years in post. This would potentially be found to be justified by a tribunal. However, if an individual were able to show that there was a high turnover within the firm and hardly anyone was likely to stay on beyond their traineeship, it is questionable whether an upper age limit could in fact be justified.

The importance of the number of years’ PQE is also set to diminish. Indirect discrimination arises where an employer applies a provision, criterion or practice which, though apparently age-neutral does, in practice, have a disproportionate impact on certain sectors of the population. The greater the number of years of PQE you require of a person, the more likely it is that the requirement will be indirectly discriminatory against younger applicants. Conversely, restricting a post to those with less than two years’ PQE could potentially discriminate against older applicants. Firms should be looking to the attitude and calibre of candidates, rather than the number of years they have been qualified. Quality of experience rather than a crude measure of quantity should become of greatest importance.

Advertising the post will also need careful consideration. You should not be looking for “young, dynamic professionals”, or “applications from young solicitors”. It should be clear from the advert that applications will be welcomed from individuals across the age spectrum. How you achieve this will depend on the job in question. You might wish to consider giving more detail as to the competencies which will need to be exhibited – e.g. an ability to work with minimum supervision – or as to the types of transaction the individual will be expected to deal with.

Particularly where support staff are concerned, recruiters should be looking for relevant experience and skills rather than a particular qualification. Requiring a set number of standard grade or higher passes, for example, would rule out the majority of older workers. Similarly, confining advertisements or application processes to the web may exclude and discriminate against older candidates, some of whom may be less computer literate than younger counterparts.

Fair selection

It is good practice to have an equal opportunities monitoring form which is detachable from the application form before the application is considered. Any request for date of birth or age should be moved to this part of the form.

Mixed-age interview panels should be used wherever possible. Comprehensive interview notes should be taken and these should include the questions asked of candidates. Ideally, the same or similar questions should form the basis of all interviews for a particular post. Remember that, as well as raising sex discrimination issues, questions surrounding childcare may well have age implications, given that older workers may be more likely to have family commitments.

Finally on recruitment, ensure that decisions on whether or not to carry out additional checks are not made on the basis of age. For example, you should not use medical checks only for older applicants, or criminal record checks only for younger candidates. There is scope to justify discrimination on the grounds of age, but only where it can be shown that it is for a legitimate objective and achieved by proportionate means. Insisting on a minimal level of physical fitness when recruiting a firefighter may deflect older candidates and may well be justifiable for health and safety reasons, but is unlikely ever to be relevant in a legal practice.

Barriers to promotion

Another area which has proven particularly contentious in Ireland is promotion procedures.

Promotion should be based on ability and performance, not length of service. Therefore, any rigid formula which requires, for example, six years’ employment before being made an associate should be revisited. A policy on career development and promotion which emphasises that age is not a barrier should be put in place and communicated to staff. You need to avoid a situation where employees are not taking up opportunities to progress because it is being suggested they are either too young or too old.

Pay and benefits

In many cases employers require a certain length of service before a benefit is given or increased. This is likely to amount to indirect age discrimination given that some age groups will be more likely to have completed the required length of service than others. You should review your benefits policies to ensure they are not discriminatory in practice, for example, giving extra annual leave days or providing health insurance only after a set length of service.

Certain exemptions are to be provided. So, for example, any length of service requirement of five years or less will be exempted and allowed to continue. More generally, use of length of service for employment benefits will be lawful if the award or increase of the benefit is meant to reflect the higher level of experience of the employee, reward loyalty, or increase or maintain motivation. In order to use the exemption, you must have concluded there will be a business benefit resulting from the higher level of experience of staff, etc.

As this aspect of the legislation also applies to partners, lockstep – the practice of remunerating equity partners on the basis of seniority – may well come under fire. It is the most common method of profit sharing in UK law firms and, while it has been argued that it is not inherently unlawful, there is a real possibility that a policy of pure lockstep may indirectly discriminate against younger partners unless it can be objectively justified as a proportionate means of achieving a legitimate business objective. Progression simply based on length of service without more, may not be sustainable after October and a more sophisticated approach to rewarding partners may have to be developed. Having said that, the alternatives could be problematic in their own way.

The main alternative is the American model of “eat what you kill”, a practice which rewards partners based only on their financial performance within the firm. It may be that firms will have to consider limiting lockstep to a five year period, thereafter allowing the level of individual profit share to plateau and making any further increase contingent on performance – a move which will no doubt prove unpopular in many firms as there is a perception that this discourages a sense of community within partnerships.  Alternatively, there may be an argument for lockstep continuing without limit of time so long as a safety mechanism is built in to prevent underperforming partners progressing in the lockstep chain. Only when the case law starts to appear will we know for sure what is acceptable and what is not, but clearly there are wider issues of policy to consider which will be fundamental to how many firms view those aspects of the partner relationship that they consider to be most important.

Training across the board

Provision of training is likely to lead to a few areas of contention.

Training opportunities should be made available across the age spectrum, and takeup monitored to ensure that employees of all ages apply for and attend training. Always follow up those who do not attend to find out why. Some allowance might have to be made for different ways of learning. Asking employees what learning styles they prefer is the easiest way to find out what is likely to be most effective.

You should also check to ensure that those who deliver training do not include any ageist aspect in content or delivery.

Retirement – a flexible option

As proposals stand at the moment, the legislation will set a national default retirement age of 65. This is not a mandatory retirement age but, rather, provides an exception to the general rule that compulsory retirement will constitute unlawful age discrimination. Retirement below 65 will still be possible, but only where this can be objectively justified. You should therefore revisit your retirement age to ensure it complies with the new provisions.

A new regime will also cover those wishing to work beyond retirement age. This will, however, only apply to employees, not to partners, advocates or other office holders. A process will be introduced whereby, if an employee wishes to work beyond the retirement age set by their employer, they will have to make a request to do so within a given time frame. The employer will come under a duty to consider that request seriously, in much the same way as already happens in relation to flexible working requests by parents of young children. Retirement procedures should be revised to ensure the triggers for the legislative processes are put in place.

The risk of harassment

As with all other areas of equal opportunities, harassment on the grounds of age will be outlawed. If a newly qualified female assistant were to be continually berated by a partner with comments suggesting she was a “useless young slip of a lass”, any harassment claim could potentially be based in both sex and age legislation.

At the other end of the age scale are the birthday cards suggesting someone is “over the hill”, or the jibes about having a “senior moment”. Office banter may need to be tempered to a certain degree.

What next?

While it is tempting to think that you need not turn your mind to this issue for several months yet, discriminatory practices may exist at the moment, and the longer these persist, the easier it could become for an individual to ground an employment tribunal claim. An age audit of existing staff would be the best place to start, followed by a review of policies and practices, education and training for staff and continual monitoring of the age profile of your firm. The sooner this process begins, and any potentially discriminatory aspects are stamped out, the better.

Chris Phillips is a partner in Maclay Murray & Spens