Age discrimination and health and safety?

From 1 October 2006 the Employment Equality (Age) Regulations have made it unlawful to discriminate against workers because of their age.

Although attention has focussed on the impact the new rules will have on recruitment and retirement, there are also implications for health and safety procedures, said Norwich Union Risk Services' (NURS) training and consultancy manager, John Phillips.

He told us: "In the past employers may have imposed blanket restrictions on their workers undertaking certain roles or tasks based on age, for health and safety reasons.

"For example, workers under a particular age may have been told that they were not allowed to operate certain machinery. Likewise, older workers may have been excluded from carrying out physically demanding tasks.

"The new regulations mean that blanket restrictions such as these will need to looked at again, as they may fall within the realms of age discrimination."

'Objectively justifiable'

Audrey Williams, employment law partner at Eversheds, explained that where clear statutory age restrictions applied - such as minimum legal age limits for driving, or for those working in the ionising radiation sector - then restrictions at work were permitted.

However, most health and safety laws were not prescriptive, and safety procedures were mainly determined by an employer's assessment of risk. Any age restrictions implemented following a risk assessment would need to be "objectively justifiable", she told us.

In the absence of any case studies to draw upon, the issue was "very much a grey area," according to Audrey Williams.

Unless there was any clear scientific research or workplace data providing reliable evidence of a significant risk to employees of a certain age, then employers may find age restrictions for safety reasons difficult to justify, she told us.

Different approach

NURS' John Phillips suggested that rather than looking to find ways of providing "objective justification" for any age restrictions imposed for safety reasons, employers should examine the issue from another perspective.

"Employers should concentrate on factors such as workers' experience and physical capability, rather than trying to control hazards through blanket restrictions based on workers' age," he told us.

"A newly recruited 18-year-old may have undergone extensive training and obtained useful experience with a previous employer, which makes he/she perfectly capable of operating potentially hazardous machinery.

"Also, an individual approaching retirement age may be far more able to lift and carry objects, or undertake other physically demanding tasks, than someone who is much younger. It is factors such as these that employers will now need to consider when introducing health and safety control measures, not assumptions based on age that could be regarded as discriminatory."

He added: "Of course, if there are any statutory age restrictions which apply, then employers will have to ensure that these are followed."