Age discrimination in the workplace

Posted by Prolegal Solicitors

What can a worker do if he/she believes that they are being discriminated against? Experts at Prolegal examine this grey area.

age discrimination in the workplace

Ever since the coming in to force of the Employment Equality (Age) Regulations in 2006, it has been unlawful to discriminate on the grounds of age in the workplace.  Unfortunately, however, adherence by employers to their legal obligations in this regard often leaves a lot to be desired, with age discrimination in the workplace being a fact of life for many.

It is not just older employees that face age discrimination.  There is no doubt that older job applicants find it difficult to find a job, with a staggering one third of people aged 50-64 currently out of work.  Frighteningly, if you become unemployed in your 50s and remain so for a year, you are more likely to die or start drawing your pension than get another job.  Research found direct age discrimination in job searches, with identical CVs giving an age of 25 getting twice as many responses to those quoting an age of 51.

The Employment Equality (Age) Regulations (subsequently replaced by the Equality Act in 2010), outlaws both direct and indirect discrimination against existing employees, and job applicants.  Direct discrimination is as it sounds: treating somebody less favourably because of their age. By way of example, refusing to employ a person because they are over 50 would be direct discrimination.  Indirect discrimination is when a rule is applied to everyone regardless of age, but which adversely impacts a particular age group.  To take an age-related example, a condition that a job applicant have 20 years’+ experience would be indirectly discriminatory, as it is unlikely that younger members of the workforce would be able to satisfy such a requirement.

Despite the above and unlike other forms of discrimination, treating somebody less favourably because of their age is lawful if it can be justified. If employers can demonstrate that the discriminatory behaviour was “a proportionate means of achieving a legitimate aim”, their actions will not be considered as unlawful.  It is on such grounds that employers may apply policies which on their face would be discriminatory, such as the above example of requiring a minimum number of years’ experience for a job.  As a consequence, the “justification” defence available to employers can make age discrimination claims more difficult to bring, as Claimants face a further hurdle in fighting their employer’s attempts at justification even if they can prove that they were treated less favourably because of their age. John McCririck lost his age discrimination claim because the Tribunal found that Channel 4 had a legitimate aim of attracting a wider audience to horseracing and “his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience”.

Nevertheless, there have been some high profile successes.   In a widely reported test case brought on behalf of 250 police officers at the beginning of February this year, a tribunal ruled that the compulsory retirement of officers with 30 years’ service was not a proportionate means of achieving a legitimate aim, and was, hence, unlawful age discrimination.  Similarly, Countryfile presenter Miriam O’Reilly won her claim for age discrimination after she was one of 4 female presenters over 40 dropped from BBC1’s rural affairs show. The BBC attempted to justify their decision with a wish to attract a prime time audience and younger viewers, but the Tribunal found that they failed to establish that using younger presenters was required to achieve this aim. 

The case Miriam O’Reilly hasn’t, however, stopped the phenomenon of older women in the media being dropped for younger counterparts with line-up changes at Loose Women seeing Jane McDonald, Carol McGiffin and Denise Welch leaving in favour of Myleene Klass, Rochelle Humes, Angela Griffin, Jamelia and Denise Van Outen.  This mirrors a well-known complaint by older actresses both here in the UK and Hollywood that there is a real lack of roles for women over 40.

Sadly, age discrimination isn’t restricted to the media. Older workers often find that younger managers’ stereotypes about their flexibility, IT skills and capabilities result in them being sidelined, subject to performance procedures or even made redundant after a restructure. Older workers return from a short period of sickness to find their manager implements a capability procedure when younger workers are not, in the mistaken belief they are likely to be out for some time.

Despite this, although age discrimination is rarely overt, it is often transparent. Older workers with unblemished long service suddenly subjected to capability procedures or similar detrimental treatment would be wise to question whether their age has resulted in unjustified concerns about performance.

So what can a worker do if he/she believes that they are being discriminated against? The key is to gather as much evidence of discrimination as possible. Get something in writing as soon as possible: send an email setting out the problem. If your employer has an HR department, get in touch with them as well as speaking to your line manager. If things aren’t resolved internally, get legal advice as soon as possible.

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