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Age discrimination in the workplace

Employers who discriminate on grounds of age are breaking the law. This article covers information specific to discrimination on grounds of age.

The latest labour force survey, produced by the Office for National Statistics (published September 2021) found that:

  • During 2020-2021, the rate of employment for those aged between 50 and 64 has remained generally the same at 71.2%
  • The average age of exit from the labour market has fallen during the period 2020-2021 and is now 65.3 years for males and 64 years for women
  • Sickness, injury or disability remain the main reasons why those aged between 50 and 64 are economically inactive in the labour market (36.9%), closely followed by those choosing to retire as a reason for not seeking work (35.1%)
  • In 2021, over 790,000 people aged between 50 and 64 years are either actively seeking work or, are inactive but willing to work (a reduction of 20,000 compared to 2020).

To be successful in an increasingly competitive market place, organisations need to attract and retain valuable employees and develop the talents of all their employees.

Age discrimination does not just apply to older workers. It can affect anyone, but other groups who commonly suffer are women returners and workers who are discriminated against because it is felt that they are too young.

The case for removing age discrimination

The business case for removing discrimination on grounds of age is similar to that for other types of discrimination: ie that employers who limit their choices by imposing unnecessary and irrelevant restrictions on who they recruit, train or promote are less likely to find and retain the best person for the job.

  • Age is not a genuine employment criterion.
  • It is a poor predictor of performance.
  • It is misleading to equate physical and mental ability with age.
  • Differences in absenteeism between age groups are slight.

Not only does ageism lower morale, but it reduces the pool of candidates available, and makes bad business sense.

Types of discrimination

As with other forms of discrimination, several types of discrimination are covered:

  • Direct discrimination – treating someone less favourably because of their age.
  • Indirect age discrimination – this would include for example, having a policy or practice which puts people of a certain age at a disadvantage, compared with other people.
  • Harassment – occurs when there is unwanted conduct with the purpose or effect of violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment.
  • Victimisation – occurs if a person is treated less favourably because they have committed a ‘protected act’. Protected acts include previous legal proceedings brought against the employer or the perpetrator; the giving of evidence at a disciplinary or grievance hearing or at tribunal; or making complaints about the perpetrator or the employer or their alleged discriminatory practices.
  • Discrimination by association – where, for example, an employee is refused promotion because they have their elderly mother living with them and is perceived to therefore be less flexible than other colleagues.
  • Discrimination by perception – where, for example, a candidate is rejected for a job because of the age they appear to be (either too young OR too old).

Penalties

In line with other unlawful discrimination, there are no qualifying periods required to be able to make a claim, and compensation is unlimited should discrimination on the grounds of age be found.

Cases of age discrimination are heard in the employment tribunal, except for claims against providers of further or higher education which must be brought in the County Courts in England, Wales and Northern Ireland and the Sheriff Courts in Scotland. Proceedings must be brought within three months of the date of the alleged discrimination (six months in the County Court).

Awards in age claims may be high for older workers because of the difficulty in obtaining alternative employment, also there may be a greater number of claims because older workers may be less concerned about the long-term career implications of bringing a tribunal claim.

Company share schemes:

Check any other benefits that you offer, such as share schemes, to ensure that these do not discriminate against older workers. Many company share schemes mature at retirement age and also reward employees who are considered ‘good leavers’. Older employees, dismissed for capability or conduct, could find they are unable to exercise valuable share options on the basis that these workers no longer constitute ‘good leavers’.

Such schemes should be amended to refer to the employment of the employee ceasing, and make no reference to retirement due to age. Provision can be made so that no options are exercisable in the event of the employee being dismissed for gross misconduct.

If you are interested in getting started with a company share scheme, check out the recent joint webinar that we held with Vestd, the share scheme experts.

Training and development:

Training and development programmes should not be restricted to certain age groups. Research shows that participation in work-related learning drops sharply once employees reach their 50s.

Any in-house training programme or training provided by contractors – whatever their size or sector – should not have age restrictions (other than, for example, driving lessons as these can only be taken after a certain age).

This also applies to all courses offered by universities and other institutions of further or higher education as well as private, public or voluntary sector training bodies, adult education programmes and the bodies that confer the qualifications achieved as a result of that training.

Training providers cannot set age limits for entry to training unless they can show there is a real need to apply them or positive action is necessary to give people of a particular age access to vocational training – to prevent or compensate for disadvantages linked to age.

Where there are no formal minimum or maximum age limits, they need to look at whether age is taken into account when considering applications for admission. An employee seeking access to, or already on, a vocational training course who feels he/she has been discriminated against on the grounds of age may have a case for legal action, either against the employer or training provider.

Monitoring:

Monitoring should be carried out at regular intervals to find out whether there is any indication of unfair discrimination against particular age groups. Check that you have age distribution statistics for all employees, applicants and retirees and that age is included on your monitoring forms, procedures and any positive action programmes.

A formal age equality audit is recommended to look in detail, not just at your written procedures but also informal practices, and eliminate any areas of either direct or indirect age-related criteria which can’t be properly justified.

Further information

The Gov.UK website provides further advice for employers on preventing discrimination.

Acas has published an online survey tool to help employers to assess their employees’ attitudes toward age within the organisation. The tool is designed to help to:

  • ascertain what employees think about age issues in their workplace and their employers’ approach and policies
  • identify any risks or issues that could potentially lead to discrimination claims

Guidance from Acas provides employers with essential advice on how to comply with the Equality Act 2010, which protects employees against discrimination based on age. It includes guidance on recruitment, training, performance management, redundancy and other areas where age discrimination may be most likely to occur, as well as a myth-busting document.

Supporting documents

If you would like further support with understanding age discrimination, we have created a free policy for you to download and use within your own business. Our Age Friendly Policy can be downloaded here.

If you would like to further discuss this topic in greater depth with one of our team, contact us or call on 0844 324 5840.

 

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