The saying goes that “age is just a number”, or so we like to think as another year passes by! But age can have a whole host of other meanings and implications, thanks to the prejudices, preconceived ideas and unconscious biases that each one of us holds. When it comes to age in the workplace, it is these that could end you up in hot water.
The legal bit – age discrimination
Age discrimination is when someone is unfairly disadvantaged due to their age; it has been illegal in the UK since 2006, and is now a protected characteristic under the Equality Act. People of all ages can be affected by age discrimination; but unlike other protected characteristics, age is unique. There can be exceptions where direct or indirect discrimination may be lawful, but only when an employer can demonstrate that there is a really good reason for that different treatment (called ‘objective justification’) and that it was a proportionate way of achieving any genuine business aim.
So, what sort of things might be exceptions?
- It would be legal to advertise for someone over the age of 18 to work in a bar as they would be serving alcohol; however, you could not put an upper age limit on the advert (even if it is in a student nightclub).
- You cannot use age as a reason to select one person for redundancy over another (i.e. last in, first out is no longer lawful), however the formula used for calculating both statutory and enhanced redundancy pay is based on length of service and age and will therefore benefit older workers and those who have worked for the organisation for the longest.
- Length of service requirements for employment benefits practices of five years or less are legal.
- The National Minimum Wage and National Living Wage are still related to age (younger workers can legally be paid less than older workers), as redundancy and the basic award used when calculating unfair dismissal awards.
Employment tribunals scrutinise any “objective justification” with a fine-toothed comb, so tread very carefully, it is not a get out of jail free card. It needs to correspond to a real business need, be necessary, appropriate and proportionate.
This is a very brief overview of types of age discrimination exceptions. For a fuller understanding of what you can and can’t do when it comes to age, get in touch with our friendly HR and Employment Law specialists on 01425 479888 or email@example.com.
What happens when it does go wrong?
There have been 689 ET cases so far this year relating to age discrimination claims.
A recent case to hit the headlines is that of 89-year-old Eileen Jolly, who was sacked from her role as a secretary at the age of 86 because she would not use the computer system, was “stuck in old secretarial ways” and had been subjected to comments by colleagues concerned they might “walk in and find Eileen dead on the floor”. Mrs Jolly cited an internal report by her manager which included remarks about her age and health, despite not having taken a day off sick for 10 years. “I felt as though he had assumed that at my age, and because of my health, I was a liability and incapable of change, and had to go”.
The tribunal found that her employer has not provided adequate training and procedures were not followed, and an out-of-court settlement was agreed.
Last year, an Employment Tribunal found in favour of David James (age 68), who did not get a job as a park keeper. The interviewer said “I’ve just noticed your age”, and then asked about his health. The tribunal concluded that his age was “certainly a factor” in him not getting the role, and affected the interviewer’s overall decision.
There is currently a case ongoing where a 56-year-old London banker is suing his ex-employer for age discrimination after he was dismissed as part of the bank’s restructuring, apparently being told he was “too old and set in your ways”. Another investment banker, successfully sued his employer in 2009 for sacking him because the company wanted a “younger” person to do his job. He was 42 years old.
In another case, a legal adviser claimed indirect age discrimination because the promotion criteria required him to have a law degree, but he did not have enough time to complete a law degree before his retirement. Though the ET and EAT both ruled that the disadvantage was due to his impending retirement rather than his age, the Supreme Court held that he was indirectly discriminated against.
Obviously not every case that goes to Tribunal is won by the claimant, but even these have lessons for employers.
In 2014, a 26-year-old took voluntary redundancy; however, if she had been over 35, her severance package would have been more than doubled. She claimed direct age discrimination, but her employer argued that it was justified in treating the older workers more favourably as they would have more family commitments and find it harder to find alternative work. The Court of Appeal found that though there was direct age discrimination between the two groups, the differential in payments was justified because there was statistical evidence demonstrating the difficulties faced by older workers after termination of employment; and that the difference in payments was a proportionate means of achieving a legitimate aim.
How do you stay legally safe?
Don’t use age as a factor in shortlisting someone for interview, or offering them the role. Remove ageist language from job adverts (don’t ask for x years’ experience, or someone “experienced and mature”) instead focus on the skills needed for the role.
Don’t make age a factor in salary awards,
Training & Development
Training and development programmes and courses should be open to employees of any age, including those close to taking retirement
Don’t judge a person’s health or fitness by their age. Age shouldn’t be a factor in physical test requirements.
Don’t make age a factor in any decision making.
Any significant differences in severance payments for different age groups would need to be objectively justified, and that they are a proportionate means to achieving a legitimate aim.
In theory, it is possible for you to have a specific retirement age, but the objective justification is extremely difficult to establish. Get advice if you want to go down this route.
Where we come in
It is very unwise to base any employment decisions on age, be that at the recruitment, retention or retirement stage. People of any age can be affected by age discrimination, both young and old.
All those sweeping generalisations about Generation X, the Baby Boomers or Millennials, they are just that – generalisations and assumptions. As an employer, if you make assumptions about everyone in a certain age category, you are going to miss out and go off in the wrong direction – everyone is an individual with different needs, knowledge, ideas and ambition.
For more information and advice, get in touch with the team on 01425 479888. Our services include supporting with grievances, disciplinaries, difficult and complex HR issues as well as training for managers on diversity and inclusion, employment law, accountability and engagement.