Age Discrimination: Common pitfalls to avoid

Age is one of the nine protected characteristics defined in the Equality Act 2010 (the linchpin piece of legislation in England and Wales that deals with discrimination). Surprisingly age discrimination has only been illegal in the UK since 2006 – far later than race (1965) sex (1976) and disability (1995). However, since then, in the Tribunal’s published statistics it has often come out as the most relied upon protected characteristic in Employment Tribunal claims for discrimination. The last full years statistics showing double the number of claims being made in comparison to the next highest protected characteristic of disability. It is currently believed the current increase as arisen because of one of the impacts of Covid-19, however my personal view is that there is unfortunately a long history of ageism in the workplace. Yet, this area rarely gets the same level attention in the press or even more generally in awareness articles or social movements. It becomes even more bewildering when alongside this discrimination, we have experienced a long-standing recruitment gap. Businesses crying out for skill shortages to be filled, however a huge cohort of skilled and talented individuals are being considerably overlooked.

What is discrimination?

Legally, there are four core areas of discrimination.

1. Direct discrimination: where someone is treated less favourably than others because of their actual age, the age of someone else they are associated with, such as a member of their family or a colleague or the age they are thought to be, regardless of whether the perception is correct or not. For example a person is discounted from an interview process because an assumption that they may retire soon or would not be able to learn new skills. 
    
2. Indirect Discrimination: relates to a ‘provision, criterion or practice (PCP)’ in the workplace which are most typically things like policies, procedures, rules, arrangements. Where this PCP is applied equally to a group of employees/job applicants, only some of whom share the protected characteristic, has (or will have) the effect of putting those who share the protected characteristic at a particular disadvantage and it puts, or would put, an employee/job applicant at that disadvantage it will be indirectly discriminatory. An example of this would be a requirement in a job advert that requires a certain number of years’ experience or a selection criterion in a redundancy process of ‘last in, first out’. 
   
   Elements of direct and all of indirect discrimination can be defended if the employer is unable to objectively justify it by showing it to be a proportionate means of achieving a legitimate aim. 
    
3. Harassment: relates to unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The conduct needs to relate to the protected characteristic, in this instance age. For example, comments like ‘can’t teach and old dog new tricks’, that someone is ‘out of touch’ or being excluded from socials because the perception is they wouldn’t want to hang out with a younger cohort or would embarrass them in a trendy bar. 
    
4. Victimisation: this occurs where the person has raised a concern about them being subjected to discrimination or has supported a complaint of discrimination, and they have suffered detrimental treatment as a result. It can also occur where a person has been suspected of doing these things, even if they have not. An example of this would be a person who has raised a grievance about staff making comments about their age, who then disciplined because they made a complaint or because they are ‘not a team player’ or ‘do not fit in with the culture’.   

Risk Areas and Tips to Assist

There are a few key areas where age discrimination is more prevalent in the workplace and represent the majority of cases subsequently brought to the Tribunals. These are in the areas of recruitment, the employer’s policies and training, within the performance review processes and more generally the culture and unconscious bias that still remain. 

• Recruitment: Unlike the dismissal protections that require some employment status, the discrimination legislation goes further, and protection is avoided to prospective employees i.e. your job candidates.  It is super important employers use neutral language when recruiting for positions. Avoid words such as ‘youthful’, ‘lively’, ‘energetic’ or anything that could denote a quality for a specific age group. Also they really challenge themselves on any criteria that could be indirectly discriminatory. For example, do you really require a certain number of years’ experience or are you actually looking for specific skills that could be discussed and demonstrated in the interview process. Do you really require specific qualification, for example is a PHD really necessary to perform the role?  If you do require them, have note of the reasons. You will need this as part of your justification defence, if a claim of indirect discrimination is made. Ensure those doing the CVs sifting and interview process have had adequate diversity training, that includes conscious and unconscious bias training. Try to use the same questions to all candidates and if possible a scoring matrix. Superdry fell foul to age discrimination in 2022 as a result of their recruitment process for Lead Designer. It was found younger people had been recruited (the advert requesting ‘youthful enthusiasm’) and promoted predominately because of an assumption made by the Company that at 55 she was a low flight risk , “too old to quit” and would stay “no matter how she was treated”. The mistake cost Superdry £96,208. Ouch!
   
• Policies and training – many workplace policies have requirements or benefits depending on length of service. Where the service is less than 5 years this is unlikely to cause the employer any difficulties, once you are past the 5-year mark however, you will be the arena where you need to be able to objectively justify it. For example, increased annual leave is to reward loyalty to the company and increase motivation, and to retain staff. In respect of training opportunity ensure access to these are applied across the board.
• Performance reviews – ensure all staff and clear objectives and the performance review is measured on these. Do not assume older employees will not want to or cannot learn new skills, to be promoted. Enable and encourage them to progress in the business in the exact same way you would with any member of staff that was performing well against their objectives. Avoid discussions that probe about retirement, however there is no issue in asking any employee what the work-place goals and plans are for the next 12, 3, 5 years. 
   
• Workplace Culture – the research and statics are truly shocking about ageism in the workplace. Many people hold a lot of misguided beliefs around age. This is at both ends of the spectrum. There has been a heap of cases about comments made regarding millennials attitudes to work and derogatory referencing to Gen X/Z being ‘snowflakes’, as well as individuals 55 and above (yes ageism starts that young!). A recent survey done for National Inclusion Week showed 68% of those interviewed over 55 felt the job market was closed off to them, yet a quater of these planned to work into their 80s. Many felt forced out of the workplace and into retirement early. 64% complained that there were excluded from leadership training and development opportunities. There has been a lot of focus in the recent years on inclusion, but this has focused way more on the other protected characteristics and backed by government initiatives like the gender and race reporting. Age is not a factor that is getting enough attention. Employers can really work on breaking down this bias by recognising stereotyping and unconscious biases, and stamping it out with training and proper diversity monitoring. Employers should call out unacceptable social cues such as jokes about age. 
   
• Menopause – there is a big link between age discrimination and menopause in the workplace. The menopause, effects women, on average, between the ages of 45-55. A very clear age cohort. The litigation in this area has tracked on an upward trajectory over the past few years, last year we saw a 44% increase in tribunal claims.  The case of McCabe v Selazar in 2021 is a shining example of the interplay of age discrimination and menopause. The tribunal upheld McCabe’s discrimination complaints in that she was denied the opportunity for promotion and ultimately dismissed because a ‘younger’ person was desired, a bias that older people were not as familiar with an IT business and and that when she challenged these events she was told ‘calm down…don’t let the hormones get out of control’. 

As we continue to be an ageing population with many now reaching their 90s and even 100s, and the research overwhelming supporting that for the average of us, our brain functioning does not start to decline until into our 70s, change really needs to be made to the perceptions that past 55 individuals’ value to an employer decreases. Its total non-sense. Employers are truly missing out on a large pool of talented candidates if this narrow thinking remains. The recruitment gap is forecast to continue and this can be mitigated if we take a step back and start to really tackle our unconscious bias and widen our thinking about diversity. 

Employment Law advice

If you need help with any of the issues covered in this article please do email our Employment Team directly. We'll be ready to advise you on any Employment issues that you may be concerned about. To talk with an Employment expert please phone 01242 586350.