In January 2017 an employment tribunal gave a decision in the case of McCloud and others v Lord Chancellor and Secretary of State for Justice and another. The tribunal looked at the transitional provisions relating to changes to the judicial pension scheme. A new scheme had been introduced by the government that provided less valuable retirement benefits, including linking the normal pension age with the state pension age, which meant a higher pension age for judges.
Older judges were wholly or partially allowed to stay in the old scheme while younger judges were moved to the less favourable new one. The employment tribunal found that the government was not justified in favouring the judges closest to retirement and therefore had indirectly discriminated against younger judges.
This case highlights the changing demographic of the labour market and the issues that come with it, as people are living longer and are therefore expected to work longer. The state pension age is due to increase to 67 between 2026 and 2028. It is likely that we will see more cases of age discrimination in the future as employers face the challenges relating to these changes and look at ways to manage them.
As a starting point for all employers, it is important to check and update company employment documents for any age discriminatory wording or implications. They should also ensure that any new policies, procedures or schemes are checked for age discrimination compliance.
Some of the issues to consider are:
- Choice of wording – Check job advertisements on websites/brochures and job descriptions for any age-related language. For example, unless it can be objectively justified, avoid specifying length of experience. It would be better to set out the type of experience that would be helpful to the job. Also, using words such as ‘mature’ or ‘young’ are unnecessary as you can target applicants by listing the type of experience you are looking for and explaining what the job requires.
- Instructions to agents – Check that instructions that could be seen as discriminatory are not sent to them, such as the above examples. Check how they have advertised the position.
- Qualifications – Check whether qualifications required for a role disadvantage a particular age group and whether there are alternative qualifications or experience that can be requested.
- Application forms – Requests for dates of birth should be avoided on application forms and can be included instead in diversity monitoring forms. Dates of educations could also lead to age-related assumptions and therefore should be avoided.
- Photos – Does a company really need a photo with an application form? Avoid unless it can be justified e.g for a modelling agency.
- Interviews – It would be useful to prepare guidance and training for interviewers and interview panels on what sort of questions to avoid.
Contracts of employment
- Retirement clauses – Check if there is a contractual retirement age. If there is can it be objectively justified as a proportionate means of achieving a legitimate aim?
- Benefits based on length of service – Are there qualifying periods for increased holiday entitlement or other benefits such as shares? To justify a length of service criterion of more than five years it must reasonably appear to the employer that it fulfils a business need.
- Insurance cover – Check if eligibility for insurance depends on reaching a certain age or ceases at a certain age. Employers are allowed to cease providing insurance in certain circumstances.
- Bonus schemes and share schemes – Do the schemes differentiate between ‘good leavers’ and ‘bad leavers’? Retirement should be marked as a ‘good leaver’ criterion.
- Amending terms – If contractual terms are to be amended ensure that consultation with employees is undertaken before any new terms are signed.
Policies and procedures
- Redundancy procedure – Any reference to length of service as a criterion for selection for redundancy should be balanced with other criteria and should be given a lower weighting. If possible can it be excluded? Do the redundancy payments match the statutory scheme? If not any use of age or length of service in the calculation must be objectively justified.
- Equal opportunities and diversity policies – Ensure these are up to date and available to all staff, and that suitable training is provided on the policies.
- Career progression – Does promotion require gaining a certain number of years’ experience and can it be objectively justified?
- Other workers – Check agreements with freelance workers, independent contractors and agency workers for any of the issues above.
- Internet and intranet – Check that the material is in line with changes in hard copies.
Seema Gill is is solicitor at My Business Counsel