Re:locate magazine, winter 2006/7

Diversity Now – and what it means for relocation

The new discrimination laws that came into force recently have made headline news, bringing the issue of diversity to the top of the agenda. But what’s the knock-on effect for relocation? Anna Lambert reports.

October 1 2006 meant big changes for employers. From that date, age discrimination became illegal. Companies could risk prosecution if they used words such as ‘young and dynamic’ in their recruitment advertising, while – within the workplace – banter such as references to ‘baby-faced colleagues’ became illegal overnight. Prior to the legislation’s coming into effect, employers already seemed to be sitting up and taking notice of their older staff members. CIPD’s Tackling Age Discrimination In the Workplace survey, published in October 2005, for instance, found that 85% of respondents reported that older workers did not cost organisations more money, while 93% agreed that it was a good idea to update the skills and knowledge of older workers. More good news came with CIPD’s publication in July 2006 of Diversity in Business: How Much Progress Have Employers Made?

This survey found that 46% of those organisations surveyed had already introduced age-related issues into their policies, meaning that they were well ahead of the game. Latest employment figures from the Office for National Statistics, meanwhile, show that older workers, particularly those above state pension age, have experienced the biggest increases in employment.

As far as relocation is concerned, Makbool Javaid of employment law specialist DLA Piper says that, while the new legislation will undoubtedly pose challenges, it does at least give employers a great opportunity to ‘health check’ their relocation policies. “Mobility clauses can be fraught with problems,” he concedes, “So it’s these that will need checking particularly carefully. Companies must ensure they’re not open to the charge of indirect discrimination, where a contractual provision disadvantages a particular group.”

So how is indirect discrimination defined? Under the UK's anti-discrimination legislation, indirect discrimination will occur where a provision, criterion or practice is applied to everyone, but it places people of a particular sex, race, sexual orientation, religion, belief, age, or disabled people at a particular disadvantage. This could be the case with a mobility clause, where, for example, women or older people are disadvantaged because of family commitments. However, if the provision, etc, is shown to be discriminatory, all is not lost for the employer who can seek to justify it. For the justification defence to succeed the employer will need to show that the provision concerned was absolutely necessary to achieve a legitimate business aim, there was no other means of achieving it and the benefits to the business far outweigh the discriminatory effect on the individual concerned.

“For instance,” says Makbool Javaid, “In a redundancy situation, if an employee is offered an alternative job 150 miles away, but can’t move because of family commitments, and an employer gets on its high horse and says, “right – you can’t have redundancy pay because your refusal to move is unreasonable, particularly as there is a mobility clause in your contract to move,” – the onus would be on the employee to prove that discrimination had occurred. However, it would take a pretty strong stretch of the imagination to see things reaching that stage. Rather, it’s all about taking pre-emptive action, with the employer trying to accommodate individual circumstances. We’ve just been involved in a huge project within the public sector, conducting equality impact assessments on an organisation's reorganisation policy to ensure it does not fall foul of any parts of the UK's anti-discrimination legislation. It has implications for thousands of employees, and ensuring that mobility clauses were reasonable and, if challenged, could be justified, was a major issue for our client.”

So what can your company do to ensure it stays on the right side of the new legislation? For a start, take the opportunity to look at every aspect of your relocation plan, ensuring that nothing it contains could be classed as discriminatory – if you offer career counselling for partners, for instance, have you made it clear that it’s available to partners in same-sex relationships? ACAS suggests devising an age action plan and has lots of suggestions for implementing quick, effective change. Here are just a few of them.

To make your action plan successful:

• Agree who’s responsible for the plan
• Launch it with the support of the head of your organisation
• Agree who should be involved and consulted
• Make sure your partners and suppliers support your action plan
• Agree and publish timescales for when you will do things and prioritise key objectives
• Get feedback from employees and address their concerns/questions

Recruitment, promotion and selection

• Remove ageist language from job and promotion adverts and focus on the needs of the job. In the short term, make someone responsible for vetting the wording
• In performance assessments, challenge phrases that make assumptions about an individual and focus on actual performance
• Look at where you advertise and how you advertise to ensure you reach the whole labour market
• Train selectors in anti-age discrimination
• Monitor and publish your results to show you mean business

Knowledge management

Recognise that senior employees have a wealth of experiences that are valuable and can help the organisation. Make sure you don’t alienate them when a move is proposed.

The new age discrimination laws provides an ideal opportunity for HR departments to look at their anti-discrimination policies – with reference to relocation – across the board, and to ensure they’re not alienating any section of their work force, be it through ageism, sexism, racism or disability discrimination. And, of course, what better time could there be to check out family-friendly policies, just incase there’s more you or your company could be doing to make life easier for those with dependents?The message is clear: stay on top of your policies if you want to keep everyone happy.