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ACCA is pleased to comment on the consultation paper and draft regulations on combating Age Discrimination. ACCA is a professional accountancy body which represents over 50,000 qualified accountants in the UK and a similar number overseas. Our members work in business, public practice and the public sector and all will have a direct interest in the subject matter of this consultation either as employers, employees, partners in partnerships or job seekers.

ACCA supports the objective of the new legislation, which we see as being fundamentally about fairness and equality of opportunity. We are a member of the Age Partnership Group, which has been campaigning to boost employer awareness of the forthcoming changes, and have been active in bringing the whole issue to the attention of our members and their clients.

We approve of the way that the proposed regulations seek to correspond with the approach adopted in respect of existing branches of anti-discrimination legislation. This will help to make it more straightforward for employers and employees alike to deal with the new rules.

The only comments we would like to make on the draft regulations are set out below:

Age and commercial strategies

We consider that one of the main areas where problems might occur is the area of age-focused marketing and sales practices. Many businesses nowadays direct their products and services at members of defined age groups. They do this for obvious commercial reasons. More often than not, such practices aim at the young, 18-30 group, and those involved in it will include fashion retailers, drinks manufacturers, the pop music industry and holiday companies. Perhaps less evident are the businesses which market their products and services at the elderly and those in late middle age, but such companies are age-focussed all the same.

We believe that the regulations must recognise that it is perfectly legitimate business practice for companies to identify a target market for their products or services and to adopt marketing and sales techniques which offer the best possible chance of achieving commercial success. A target market based on age should be seen as no less legitimate as a target market based on geographical location or perceived customer wealth.

In this light, we are concerned that the example cited at the top of page 34 of the document appears to suggest that it will not be possible for age-focused businesses to employ staff of an age which is consistent with their marketing strategies.

We do not suggest that it should be legitimate for businesses, even age-focussed businesses, to adopt practices which discriminate across the board against people of particular ages. But we believe that, with respect specifically to advanced customer service positions, such as sales assistants, tour representatives and the like, we believe it should be permissible for businesses to recruit and employ individuals who are of an age which best helps the business to carry out its strategy and connect with its target market.

This principle should apply to age-focused businesses of all kinds. For example, we suggest it is reasonable commercial practice for high street fashion shops to employ young people in their teens or early twenties since persons of that age group are likely to be best able to communicate with and sell to the target market of people of the same age. Employing people of middle age and upwards in such positions would, we suspect, carry with it a commercial risk that the business would not be as successful in selling its products to its target market. Likewise, for businesses which organise package holidays for the elderly, it may be inappropriate in customer relations terms for the firm to appoint a tour representative who is in his or her 20s and who has no empathy with the concerns of an elderly clientele.

We appreciate that one of the available derogations from the rules on direct or indirect discrimination is to be ‘genuine occupational qualification.’ But the consultation document suggests that this will only be available in very restricted circumstances such as acting jobs. The other available derogation is where the practice complained of has a legitimate aim and is applied in a proportionate manner.

We recommend that the Department should acknowledge that achievement of commercial objectives should be seen as a legitimate aim, and that age-based recruitment, such as in the fore-going examples, may meet the legitimate aim test where the business concerned has an age-focused marketing strategy and it feels it would assist it in achieving its commercial aims for it to be able to recruit on effectively an age-focussed basis. Thereafter, it would be proportionate, in our view, for the business to appoint staff of a ‘sympathetic’ age group for front-line customer-focussed positions (but not necessarily in positions where there is no regular contact with customers).

We would therefore like to see the Department adopt this position. If it decides to proceed with its proposal to include examples of ‘legitimate aim’ in the final version of the regulations, we suggest that some recognition of this matter should also be adopted.

Age discrimination and company directors

The consultation document suggests that the new anti-discrimination rule will apply to the appointment of company directors. We would point out that the proposed new company law reform bill will abolish the current 70 year age ‘cap’ for service as a director of a public company but will introduce a minimum age of 16 for directors of all companies. We support the introduction of such a minimum age since it is important that directors are sufficiently knowledgeable and mature to carry out their responsibilities. We merely point out that the Department needs to make clear that the 16 year threshold will need to be
defended either as a genuine occupational requirement or on the basis of a legitimate aim.

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