Legal Thought Leadership

Age discrimination in the workplace

August 23, 2018

A report earlier this summer claimed that the government is failing to protect millions of UK workers from age discrimination. Around a third of UK workers will be over the age of 50 within two years. This is a ticking time bomb for employers. In this blog, Employment Law Partner Thalis Vlachos looks at the law surrounding age discrimination and what you should do if you think you are being discriminated against based on your age.

An Ageing Population

Britain’s population is ageing. Almost a quarter of the UK population will be aged 65 or over within the next two decades. Yet the government is neglecting older workers. After the release of a critical recent report by the Women and Equalities Committee, its chair, Maria Miller MP, said: “As a country, we face serious challenges recruiting and retaining an experienced and skilled workforce. Until we tackle discrimination against the growing number of over 50s, they will continue to be consigned to the ‘too old’ pile instead of being part of the solution.”

Dove v Brown & Newirth Ltd

The types of issues faced by older employees were encapsulated in the case of Dove v Brown & Newirth Ltd a couple of years ago. Alan Dove, 61, had been nicknamed “Gramps” for several years by colleagues at the Hertfordshire jewellery manufacturer for whom he had worked, for more than 25 years. Mr Dove, who had no grandchildren, was the oldest member of the sales team by more than ten years. He claimed that his clients had been “engineered away from him” by colleagues.

The firm’s head of sales, Gareth Thomas, said he considered the nickname “an affectionate term of address” but Mr Dove said he found it disrespectful and hurtful. Mr Thomas admitted to writing in an email that another jeweller had complained that Mr Dove was “too long in the tooth” and “old fashioned”. The Tribunal found in favour of Mr Dove and he was awarded £63,390.95 for loss of earnings and injury to his feelings.

The claim made by Mr Dove was brought under the Equality Act 2010. Making it unlawful to discriminate against employees, job seekers and trainees because of their age. This could be because they are younger than a relevant or comparable employee as well as older. This means that age discrimination can not only affect older employees, but younger ones also.

Age discrimination can effectively be broken down into four main types:

  1. Direct discrimination

Treating someone “less favourably” because of their actual age (direct discrimination), perceived age (direct discrimination by perception) or the age of someone they associate with (direct discrimination by association).

In one case, a Tribunal agreed that it was age discrimination when a general manager said old workers were like old football players and needed to leave to bring in new blood otherwise the team would not be efficient.

In certain circumstances, discriminating because of someone’s actual age is permitted if it is “a proportionate means of achieving a legitimate aim”. An example is a case from last year where it was decided that there was no discrimination after bar and waiting staff were replaced by new staff that better suited a “modern and trendy” image.

  1. Indirect discrimination

A policy, practice, procedure or workplace rule that applies to all workers but particularly disadvantages people of a particular age.

In a well-publicised case last year, a Tribunal found in favour of 200 judges whose pension entitlements were cut saying it was indirect discrimination.

Furthermore, indirect discrimination can occur in a seemingly innocuous recruitment advert, which, for example, asserts that a particular job role would be suitable for individuals in the first five years of their career.

  1. Harassment

When unwanted conduct relating to someone’s age has the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

An estate agent was found to have committed harassment (and hence direct age discrimination) last year when it told an employee she was “better suited to a traditional estate agency”.

What is interesting about this area of the law is that the harassment does not have to relate or be directed against the person claiming harassment, as long as it can be established that an offensive environment has been created.

  1. Victimisation

An employee who has complained of or supported a claim of age discrimination and subsequently treated unfairly.

In a case in Northern Ireland, an employer sacked a woman from his dry-cleaning business after she brought an age discrimination case against him. Following her dismissal, she claimed victimisation and won nearly £25,000 from her former employer.

In these circumstances, you do not have to show that you have been discriminated against, but that you honestly believed you were being discriminated against and suffered a detriment as a result of your complaint.

Who can bring a claim for age discrimination?

All workers and employees have discrimination rights, as do apprentices and self-employed people working under a contract to do the work personally. The rights extend to “office holders” such as Partners in a business and barristers.

Objective Justification

An employer can objectively justify their conduct in the case of direct and indirect discrimination only, (although the tests slightly differ), if they can assert that they are pursuing a legitimate aim and the means of achieving that aim are proportionate and necessary. A legitimate aim can be allowing for succession planning, a reasonable period of service post training, or health and safety. So, technically there is age discrimination here, but there is no liability on behalf of the employer.

The above is, of course, a simplified outline of the law and there are some exceptions in certain circumstances.

What I have always found interesting in this area, is that out of all the discriminatory practices it is the least obviously harmful, as there is arguably a bigger stigma attached to discrimination/harassment because of race, disability, sex, etc. However, potentially, it is the most lucrative, as individuals claiming age discrimination who are in their 50’s can claim loss of earnings for a significant period of time. They are less likely to mitigate their losses by finding new commensurate employment and they can claim compensation for that.

My advice to employers is that they should put in place policies intended to prevent age discrimination in relation to recruitment, pay reviews, benefits, selection for promotion, training, redundancy and dismissal.

Written by Thalis Vlachos, Employment Law Partner at gunnercooke.

To discuss any issues relating to age discrimination in the workplace, please get in touch for a confidential discussion.

DD: +44 (0) 7971 000 048

Email: thalis.vlachos@gunnercooke.com

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