Age discrimination – what can employers do to prevent claims?

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The number of age discrimination claims has increased by 164% to 2,900 in the three months to December 2010, compared to 1,100 the year before, an analysis of the latest data show.

This trend is likely to continue particularly when you consider that the effects of the government's public spending review cuts are now starting to bite; the government's removal, last month, of the default retirement age of 65; and high profile cases such as the former Countryfile presenter Miriam O'Reilly successfully suing the BBC for age discrimination after she lost her role on that show to a younger presenter.

However, there are number of steps that employers can take to prevent successful claims of age discrimination being made against them. These include:

Except in exceptional circumstances, most employers are going to face difficulties being able to justify the continued use of a retirement age. Accordingly, employers need to make sure that their performance management procedures are applied fairly and consistently across all age groups.

Avoid only using 'last in, first out' as the selection criteria for redundancies. In Rolls Royce v Unite the Court of Appeal held that it would be proportionate for employers to use an employee's length of service; as one of a number of factors it takes in to account when deciding who to make redundant, it is highly likely that using length of service alone would not amount to an objective justification.

Decisions on whether to give employees 'early retirement' (in order to avoid making enhanced redundancy payments) need to be carefully considered. In Woodcock ('W') v Cumbria Primary Care Trust (PCT) W was a CEO whose position became redundant as a result of a merger of a number of PCTs. He was served with notice in May 2007 without consulting with him, so that his dismissal would take effect before his 50th birthday in June 2008. (This avoided the PCT having to pay an enhanced pension to W of between £500,000 - £1 million. W actual redundancy payment was worth £230,000). W brought an Employment Tribunal claim alleging age discrimination which was dismissed. He appealed and the Employment Appeal Tribunal ('EAT'), held, on the facts of this case, that although W had been treated less favourably on the grounds of his age, this was justified in order to prevent W receiving a 'windfall'.

However, Woodcock needs to be contrasted against the decision in London Borough of Tower Hamlets v Wooster ('W'). Here the EAT found that the Council had discriminated against W by making him redundant before his 50th birthday to avoid his enhanced early retirement terms taking effect at 50. The Council had failed to apply its redeployment policy to avoid retaining W beyond his 50th birthday. Further, the employer had failed to put forward an objective justification for its actions.

Advertisement for jobs ought to be reviewed for potential ageist criteria; unless such criteria can be justified it could be subject to challenge. In Rainbow v Milton Keynes Council a tribunal found that the candidate was disadvantaged by having too much experience. R, aged 61, was employed as a part-time supply teacher. The Council advertised for a full-time teaching post that 'would suit candidates in the first five years of their career'. R had 34 years' experience, some of which was relevant to the post. She applied and was rejected. The tribunal upheld R's claim for indirect discrimination. The Council failed to show that the decision to appoint a cheaper, less experienced employee was objectively justified.

Employers also need to avoid making assumptions on employees abilities based on their age. In Thomas v Eight Members Club and others T was dismissed for being too young. T, aged 19, worked as a membership secretary for the employer's private members club. T was dismissed after being told by her manager that she was too young to do the job, and that if he had met her a few years later she would have been able to do it. The employment tribunal upheld T's direct discrimination claim.

In conclusion, the above illustrates that if employers have not already done so, then it would be prudent for them to ensure that their managers, supervisors and staff receive training on age discrimination.

Other useful reference material is the ACAS guide for employers on the age regulations http://www.acas.org.uk/media/pdf/d/t/6683_Age_and_the _Workplace_AWK.pdf.

Paul McFarlane, partner in the Employment team at Weightmans LLP

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