How to avoid claims of age discrimination by employees
As school leavers and graduates compete with an aging population who need or want to work longer, there is an increasing risk to employers of employees bringing claims against them for age discrimination where they believe their career prospects have been adversely affected by how old they are. In this article, Mark Rothman, employment lawyer at Jefferies Essex LLP in Chelmsford and Southend, outlines the main provisions of the law on age discrimination, contained in the Equality Act 2010, and explains the steps you, as an employer, can take to avoid falling foul of the rules.
Discrimination in recruitment
Job applicants are protected from age discrimination. Before publishing a job advert, you need to look carefully at the language you intend to use to check whether it might put off a potential candidate because of their age. Potentially discriminatory requirements include:
- advertising for ‘recent’ graduates, as this is likely to exclude many older workers;
- asking for ‘youthful enthusiasm’, as this has already been found by an employment tribunal to be discriminatory; and
- specifying a number of years’ experience, as this may exclude younger workers; it is better to describe the level and kind of experience needed where this is a pre-requisite for the job.
Stipulating a specific age or age range might be permissible if it is a genuine occupational requirement. This might apply to an acting role, for example.
Before using potentially discriminatory requirements in recruitment, you should speak to your solicitor about the proposed wording of your advert and whether the requirements you intend to impose could be justified before an employment tribunal.
Opportunities during employment
Older employees should be afforded the same opportunities as younger employees, and vice versa.
In the context of career development, ensuring a fair approach is taken to older employees might involve challenging a manager’s unconscious bias. For instance, if a manager is more encouraging of younger employees’ career progression than their older colleagues, on the basis that they perceive their careers to have levelled off, this will need to be tackled as it could be discriminatory.
Equally, taking the view that younger employees lack the maturity for more senior positions could cause you problems. A safer approach would be to assess performance and look at training and development needs to enable a younger employee to equip themselves with the skills needed for a senior role.
Pay rates based on age
The Equality Act allows employers to pay employees of different ages different rates of pay, as long as this is based on the pay structure under the national minimum wage legislation. Unsurprisingly though, if you dismiss an employee because on turning 18 they are now entitled to the higher pay rate for 18 to 20 year olds this would be discriminatory.
Calculation of redundancy payments
Another exception to the general rule that employees of different ages should not be treated differently is the calculation of redundancy payments. Statutory redundancy payments are based on age and length of service.
Long service awards
Employers wanting to reward loyalty and improve employee retention by giving benefits based on length of service can rest assured. Although likely to be indirectly discriminatory because younger workers are less likely to have longer service, a benefit recognising service of five years or less is exempt from the legislation. A benefit awarded for more than five years’ service is not discriminatory provided you can show this fulfils a business need.
Retirement
Until 2011, employers could insist on employees retiring at 65, the default retirement age. This meant that, as long as the employer followed the correct steps, the employee had to leave at 65 with no claim for age discrimination possible. However, since the removal of the default retirement age, most employers no longer have a compulsory retirement age and therefore caution needs to be exercised.
Employers wanting to insist on retirement at a specific age should be wary of the risk of claims for direct discrimination. To minimise the risk, you need to:
- show a legitimate aim for insisting on a compulsory retirement age, such as increasing inter-generational fairness by allowing younger employees to progress, or ensuring personal wellbeing and public safety are protected where a certain amount of fitness is required to do the job in question; and
- demonstrate that having a compulsory retirement age is necessary to achieve the legitimate aim you have identified.
Only then will an employment tribunal consider that the retirement age is justified.
Workplace banter
One person’s banter is another person’s harassment. Ageist name-calling, such as ‘gramps’ and ‘whippersnapper’, even if intended affectionately, should be discouraged among the workforce. If it is unwanted, an employee may have a claim against their colleague and it is you, as their employer, who may have to pick up the tab.
For further advice on age discrimination, or any other employment law matter, please contact Mark Rothman on 01245 206740 or email mr@jefferieslaw.co.uk.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.