Age discrimination can have a significantly harmful overall effect on businesses, damaging internal relationships and affecting productivity, not forgetting the potential legal costs associated with claims. Yet some businesses still fail to understand the consequences associated with discrimination on the grounds of age.
It's worth a reminder as to what's forbidden under our existing legislation. Discrimination on the grounds of race and sex has long been prohibited by the law. But by contrast, it wasn't until 2006 that the Employment Equality (Age) Regulations 2006 made age discrimination unlawful.
Those Regulations have now been superseded by the Equality Act 2010 which prevents discrimination on grounds of age and protects applicants, employees and "workers" - meaning that others, such as agency workers, partners and office holders are all protected. Companies cannot treat someone less favourably because of their age (whether young or old), unless that treatment is "objectively justified", i.e., is a proportionate means of achieving a legitimate aim. Companies must also ensure that individuals are not harassed on grounds of their age, or retaliated against if they claim to have suffered age discrimination.
The protection afforded by the Equality Act 2010 extends to all aspects of the working environment, from the hiring process itself, to the terms on which someone is engaged, and to promotions, training and, ultimately, dismissal.
Just how wide this protection can go can be seen from a review of the cases decided by the courts.
For example, an employer who advertised for someone with "youthful enthusiasm" and focused on applicants' "drive" and "motivation" discriminated against a 58 year old with 30 years' experience when younger and significantly less experienced individuals were hired.
At the other end of the age spectrum, an employer who dismissed a newly hired 18 year old on grounds of capability was found to have made assumptions about her ability based on her age, rather than her actual performance, and was held to have discriminated against her.
Recruitment and dismissal
Although all aspects of the working relationship are protected, claims of age discrimination are particularly common when companies are either hiring or firing. As noted above, what you can and cannot say in a job advert has become a major factor in the modern day recruitment process.
Claims of indirect age discrimination based on job adverts are quite common. Descriptive words such as youthful, enthusiastic and energetic could imply that only young applicants should apply. Other specifications such as years of experience could also discriminate against younger applicants.
Dismissal is another area in which it is easy for employers to get it wrong. Employees can be very sensitive about potential age discrimination on termination and often feel aggrieved, as shown in the McCririck case. Employees can only have a compulsory retirement age of 65 or over if it can be objectively justified. And these sorts of issues also arise when companies are carrying out wider programmes, such as redundancies. For example, if employers decide to offer enhanced redundancy payments, they should mirror the statutory framework to avoid claims by younger employees that they are favouring older employees by giving them more.
As compensation for discrimination is uncapped, the financial consequences of a finding of discrimination when firing someone can be significant. As a result, employers cannot afford to ignore the issue of age equality in the workplace.
What can businesses do to avoid these issues in the future?
Many employers see the avoidance of legal penalties as their key objective. Whilst important, this shouldn't, however, be the main focus of employers' efforts to deal with age discrimination.
At the very least, businesses should have strong internal policies that prevent age discrimination throughout the lifecycle of the working relationship and all employees should be made aware of the content of these. As with other areas of discrimination, the key is to change the culture of an organisation and policies are often a first step in doing this.
HR departments are particularly important in ensuring success in these efforts. For example, as well as rolling out policies, they should monitor that all employees receive the same educational, training and promotional opportunities, regardless of their age.
Having a robust internal policy and taking careful steps to implement it will put employers in a legally secure position, and on the right race track as Channel 4 was with John McCririck last month.
Ann Bevitt is a partner within Morrison & Foerster's employment law practice