An employment lawyer’s perspective on age discrimination

Age is one of nine protected characteristics that are covered by the Equality Act 2010 (EA) meaning job applicants, employees, workers and apprentices have protection from discrimination, harassment and victimisation in the workplace on the grounds of age. This wasn't always the case, however. Age discrimination was not unlawful until relatively recently. The default retirement age was only removed in 2011. Before then, employers were able to forcibly retire employees on the grounds of age where the same action on the grounds of other protected characteristics would have been unlawful.

These protections have had a positive effect that I have been able to witness during the course of my career. However, there are a number of ways in which age still operates as a disadvantage and inequalities persist in the workplace that employers need to address, particularly with the number of over 50s in the workplace rising year-on-year.

Age discrimination can, of course, be directed against younger workers and this must similarly be addressed by employers and eliminated from all aspects of the employment relationship. This includes job advertisements and recruitment processes, promotion opportunities and selection for redundancy. Nevertheless, it's arguable that discrimination against older workers sits behind the marked rise in age discrimination claims in the Employment Tribunal being witnessed – the largest rise of any complaint between 2019 and 2021. Older workers who are made redundant find it harder to find alternative employment due to discriminatory assumptions, recruitment processes and the unconscious bias of those involved in making recruitment decisions.

These challenges are highlighted and explored in the Centre for Ageing Better's latest research on Good Recruitment for older Workers (GROW), which shines a spotlight on the disadvantage in recruitment processes felt by over one third (36%) of 50-70 year olds. These unnecessary obstacles are necessitating more Employment Tribunal claims to be brought by older workers seeking to recover their financial loss, as well as recompense for any injury to feelings for unfair treatment. Older workers may also face greater barriers in responding to technological changes imposed by employers.

It is well acknowledged that more diverse workplaces benefit from increased innovation and diversity of thought, so there is every reason for employers to look for ways to promote age diversity. However, in light of #metoo and Black Lives Matter, it's unsurprising that many employers have been focused on eliminating sexual harassment and race discrimination from their workplaces as an immediate priority; this may have resulted in any focus on eliminating age discrimination and disadvantage slipping down the priority list.

There are a number of compelling reasons why a focus on addressing age-related workplace issues should be equally prioritised, not least the rising number of age-related discrimination claims for which there is no cap on the level of compensation that can be awarded and for which the PR fallout can be considerable.

A notable example of this is the successful age discrimination claim brought by 50-year-old Mr Clements against Guy's & St Thomas' NHS Foundation Trust. Informal feedback from a young and predominately female team on 'best fit' led to him being turned down for a Project Manager role despite having the highest interview score, a decision the Judge felt took into account factors that were discriminatory on the grounds of age.  

Employers must also be careful that any initiatives to address other diversity challenges do not inadvertently discriminate against older workers.  For example, attempts to close any identified gender pay gap should not be to the detriment of older workers – forcing out individuals (for example, older men) through redundancy processes are likely to be found discriminatory.

On a positive note, with a renewed focus for employers on employee wellbeing, many are increasingly recognising the challenges individuals face on a personal level at different stages of their lives. Many employers, for example, are now introducing policies to support employees going through the menopause; this is a positive step forward and will hopefully see fewer women leaving the workplace due to their symptoms.

So, what else can employers do to promote inclusivity and age diversity in their workplace? Employers should assess the different stages of employment when age discrimination could occur: think about recruitment, training, promotion, pay and benefits, performance management, selection for redundancy and other dismissals, retirement and how flexible working requests are dealt with – is any direct or indirect discrimination occurring?

To give an example related to the very start of the relationship – are your job advertisements targeting a particular age demographic? Are the photographs chosen suggesting applicants should be part of a certain age group? Have you been clear on what skills and experience is really required? Asking for a specific number of years' experience or for 'mature' candidates is unlikely to be justifiable and could well end up as evidence supporting a prima facie case of age discrimination in the Employment Tribunal.

Creating support systems to address the challenges faced by employees of particular ages is also important; can you introduce a policy supporting employees through the menopause? Are there any senior staff who can champion an awareness campaign to ensure these issues can be more openly raised and supported?

Employee forums and surveys are an excellent mechanism for finding out what the issues are for employees of all ages as are resources such as the GROW recruitment guide. This information can then be used to target particular areas for improvement and help create an environment where employees of all ages can do their best work.

The views and opinions expressed in this guest blog are those of the authors. They do not necessarily reflect the policy or positions of the Centre for Ageing Better.

This article was originally published in People Management.