Age old problem of discrimination in the workplace
Employees are now having to work much longer before retirement and age discrimination remains an issue employers need to be alert to and able to deal with.
Age discrimination, often referred to as ageism, is one of the most common forms of unfair treatment at work. The age gap between staff can now be 50 years or more.
One of the most likely causes of ageism is stereotyping and making assumptions about individuals because of their age.
Such judgements can typically lead to: poor decision-making when recruiting and promoting staff or deciding who gets trained; workers can also lose motivation because of stereotyping and there can be a loss of trust among colleagues. It can also lead to discrimination claims.
Prior to the pandemic figures from the Office for National Statistics revealed that there were around 528,000 people in employment aged 70 years or over in the UK (1). That figure represented 1.6 per cent of all people in employment aged 16 years or over.
Industries and occupations with the highest number of workers over 70 included agriculture, the creative arts and entertainment industry and chief executive and senior officials.
In November 2018, State Pension age was 65 for men and women – but it is gradually increasing and now depends on when you were born. Age UK say it will reach 67 by 2028 (2).
Employees are now working longer before retiring. Although legislation is in place to protect older workers from discrimination, a recent report highlights that it still appears to be a problem that some face in the workplace.
A veteran teacher at a top prep school reportedly won more than £140,000 in an age discrimination case after she was unfairly sacked by the headteacher. (3)
The 60-year-old teacher had worked at the school for nearly two decades but was said to have been fired when her boss became concerned about the 'fierce competition' it faced from other schools.
Parents reportedly complained about the teacher's lack of a degree and she was dismissed as the school was said to have struggled to retain and attract new pupils
The tribunal judge ruled the teacher had been unfairly dismissed and suffered age discrimination.
Age discrimination is when you are treated differently because of your age in one of the situations covered by the Equality Act 2010 (4). The Act has some exceptions. For example, students are not protected from age discrimination at school.
Age discrimination can be a one-off action or as a result of a rule or policy based on age. It does not have to be intentional to be unlawful.
There are some circumstances when being treated differently due to age is lawful. However there are five key areas where age discrimination can happen:
Recruitment - it can happen at any time during the recruitment process.
Training and promotion – bias and stereotypical thinking can influence decisions regarding who gets trained or promoted.
Performance management – Inconsistent treatment of older workers can be unduly influenced by preconceptions or bias concerning age.
Managing under-performance – denying an older worker the opportunity to reach and maintain an acceptable level of performance because they are considered too old for a role.
Retirement – assumptions and suggestions made about retirement or forcing the worker to retire.
ACAS provide advice on how employers can avoid all forms of discrimination including age discrimination (5)
having an up-to-date equality policy
providing regular anti-discrimination training to staff
making it clear how staff can complain if discrimination happens
regular one-to-one catch-ups between employees and their line managers, to help build positive working relationships
This can help:
make sure your workplace treats employees fairly
make it less likely you'll be held responsible for discrimination carried out by an employee.
All employers should take a zero-tolerance approach to all forms of discrimination, take any complaints seriously and investigate them fairly and without delay.
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(1) National statistics of over 70 workers [Internet] www.ons.gov.uk [cited 15.2.21] https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/coronavirusandemploymentforthoseaged70yearsandoverintheuk/october2018toseptember2019#:~:text=In%20the%20UK%2C%20there%20are,aged%2016%20years%20or%20over
(2) Pension [Internet] www.ageuk.gov.uk [cited 15.2.21] https://www.ageuk.org.uk/information-advice/money-legal/pensions/state-pension/changes-to-state-pension-age/#:~:text=State%20Pension%20age%20is%20gradually,will%20reach%2067%20by%202028
(3) Discrimination case won [Internet] www.telegraph.co.uk [cited 15.2.21] https://www.telegraph.co.uk/news/2021/02/12/prep-school-teacher-wins-140000-age-discrimination-payout-pushy/
(4) Age discrimination [Internet] www. equalityhumanrights.com [cited 15.2.21] https://www.equalityhumanrights.com/en/advice-and-guidance/age-discrimination
(5) ACAS provide advice on how employers can avoid all forms of discrimination. [Internet] www.acas.gov.uk [cited 15.2.21] https://www.acas.org.uk/discrimination-and-the-law/what-an-employer-can-do-to-prevent-discrimination#:~:text=You%20can%20help%20prevent%20discrimination,can%20complain%20if%20discrimination%20happens
For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call.