The five ages of discrimination: age discrimination employment law special

Pam Farmer, the group equality and diversity manager at BT, defies age stereotypes. “I am the oldest person in the team and, theoretically, I am illiterate when it comes to new technology,” she says. “But I suggested a downloadable MP3 video broadcast so that employees could carry material from diversity awareness sessions away with them.”

Fortunately for her, the idea was greeted with enthusiasm. Unfortunately for many workers, such an enlightened attitude is not the norm and they still encounter discrimination related to their age.

Despite the impending legislation, age stereotypes still dominate in the workplace, but there are signs of change, according to Makbool Javaid, partner at law firm DLA Piper Rudnick Gray Cary.

“HR departments are working hard to eradicate deeply held views drawn from society,” he says. “But are senior managers and the board adopting their values?”

Javaid believes we live in a youth-obsessed culture. “Political leaders have to be young. Society still links ability to age,” he says.

At the same time, ingrained prejudices, sex discrimination and equal pay issues are still prevalent, while many organisations are still resisting doing equal pay audits on a voluntary basis. So can we kick the age discrimination habit?

Teens and 20s – young, gifted and ignored

Young people now receive more education in diversity and citizenship than previous generations, so do not expect to encounter prejudice in the workplace, according to Dianah Worman, head of equality and diversity at the Chartered Institute of Personnel and Development.

“Younger people now expect fair deals and equality to be part of the landscape,” she says. However, they may run into prejudice even at the recruitment stage, warns Heather Salway, HR director at recruitment consultant Eden Brown.

“Young people often find that their qualifications don’t count for anything any more, as some employers have a poor view of good exam results or a degree,” she says.

Once in work, young adults experience age discrimination as much as their older colleagues, according to the TUC. It has responded to the government consultation on the draft regulations by asking for the National Minimum Wage Youth ‘development’ rate (for 18- to 21-year-olds) to be removed, rather than classed as exempt from the regulations as the government proposes. It fears that current plans to include 21-year-olds in pay discrimination bands will encourage employers who pay adult rates from 21 to bring that level down.

The greatest discrimination is felt by disabled young people. A survey from the Disability Rights Commission found that one in eight disabled young people had been turned down for a job and told that it was for a reason related to their disability. By the time they reach 30, one in three disabled respondents expects to be earning less than other people their age.

Women, meanwhile, could already be feeling the prejudice that could blight their child-bearing years in employment, says Lucy Anderson, senior equality and employment rights officer at the TUC.

“The child-bearing years are when age and gender discrimination appear together,” she says. “For men, it’s not an issue as they are not perceived as potentially burdensome employees.”

30s – age of inequality

More women between the ages of 30 and 34 are now having babies than women in their late 20s, according to the Office for National Statistics.
This new age profile for motherhood is also exacerbating what the Equal Opportunities Commission (EOC) calls “the fertility penalty”, as women start to pay the price for taking time out of their careers to have a family.

For example, an EOC breakdown of the hourly pay by age group for men and women in 2005 found a 60 pence difference in pay for the 22 to 29 age group. Once women were in the 30 to 49 age group, they were likely to be up to £4 an hour worse off than their male counterparts.

Some employers still refuse to accommodate requests for flexible or part-time working, says Javaid. Requests for atypical working or compressed hours are still causing difficulties at some organisations.

“Employers need to consider the question of justification,” explains Javaid. “Have they got a business case for maintaining continuity of one employee doing that job?”

Parental or caring responsibilities not only damage careers but also make a dent in the pensions pot, according to Deborah Cooper, senior research actuary at Mercer HR Consulting.

“There is limited protection for maternity and paternity breaks, so if someone takes longer than the statutory leave, then the employer is not obliged to cover it,” she says.

Again, disability discrimination can hit any age group. In the case of Jenkins v Legoland Windsor Park, the company presented employees with small plastic figures representing job roles to celebrate three years’ service. The case rested on the fact that disabled staff member Jenkins, aged 30, was given a figure with one arm in a sling.

40s – run out of puff

“Our experience is that once potential recruits get to their late 40s there are organisations that are not interested in them,” says Salway. One sector in which this is particularly prevalent is IT.

Michael Mertens, chairman of specialist group Age of IT, sent out two near-identical CVs, with one crucial difference: one candidate was 37 years old, the other 47. The CVs were put forward for the same vacancies. The 37-year-old received a number of enquiries, but the 47-year-old received none.

Workers in their 40s tend to populate more senior roles, yet they must be careful not to perpetuate workplace stereotypes in the way they recruit.
Paul Lambdin, partner in the employment department at law firm Stevens & Bolton, says: “Managers often recruit in their own image. But they must make a positive effort to embrace diversity.”

There is also an inadvertent danger of racism for employers which go out of their way to recruit older employees.

Based on the 2001 census, the UK’s ethnic minority population has a younger age profile than the white population, so could lose out in a push for older workers.

50s – out of the ‘in-crowd’

By 2025, half the adult population will be over 50, according to figures from Age Positive, but how prepared are employers for this?

The forthcoming Employment Equality (Age) Regulations, which come into force in October, could unleash a wave of employment tribunal cases where experienced managers are passed over for promotion in favour of a younger model.

“Succession planning can be a defence for recruiting a 38-year-old instead of a 58-year-old,” says Lambdin.

Many employees in their 50s can feel alienated by a workplace culture that might appear the norm to younger age groups. Office parties can be a sticking point, according to Lambdin, who had heard of one office party offering rock music and beer and was subsequently boycotted by the older members of the workforce. “A majority vote by employees for one style of party is not a defence,” he says.

60s – older, wiser… and poorer

Under the draft Employment Equality (Age) Regulations the default retirement age will be set at 65 for both men and women. This will make it difficult for employers to justify why they have set a low retirement age.

At the same time, long-service awards, which some people will have looked forward to for 40 years, may lose their shine when the age regulations come into force. “The employer will have to justify offering something for beyond five years’ service,” predicts Worman.

That final trapping of working life – the pension – can perpetuate discrimination into retirement, says Cooper. Staff who are members of defined contribution schemes may have to buy an annuity and because, on average, women live longer than men, women often get a smaller annuity, because insurance has to support the fund over a longer period of time. “Is that discrimination?” asks Cooper. “Or is it legitimately recognising a difference in cost?”

For now, the government is treating it as a reasonable difference. “Motor insurance is less for women because they make fewer claims,” she concludes. “But the EU is suggesting a directive on whether or not to use different annuity rates for men and women.”

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