Fifteen years after the Employment Equality (Age) Regulations 2006 came into force, Sarah Evans examines why the law, since suberseded by the Equality Act, is rarely the subject of employment tribunal claims and whether employers are doing enough to stop age discrimination in the workplace.
Legislation to protect against age discrimination in the workplace was introduced 15 years ago, but there have been relatively few claims on this basis compared to on other grounds of discrimination. This figure is growing – but age discrimination cases still only represented 2% of the receipts in the employment tribunals in 2020 (3,668 cases out of 180,430).
This is despite age discrimination being a very live issue. A report for Legal & General, published in full today by the Centre for Economic Business Research, claims that age discrimination impacts job prospects of 3 million over-50s and that half of over-50s (52%) who have searched for work in the past five years believe their age made employers less likely to hire them. It also found that one in nine over-50s face leaving the workforce altogether after being made redundant.
Employment lawyers and HR professionals were warning that a disproportionate number of older employees were on furlough or let go in redundancy drives when the pandemic first hit and the Coronavirus Job Retention Scheme began. Now that the scheme has ended, we might expect to see a similar spike in dismissals of our older colleagues.
However, dismissals are not the only measure of discrimination, as the Legal and General report illustrates, inclusive recruitment practices seem to be suffering too, with 22% of surveyed candidates identifying their belief that their age was a factor in not being called to interview or recruited, citing being too close to retirement age, being overqualified or perceived as lacking ‘current’ skill sets.
Age discrimination at work
Over-50s pushed out of workforce as 20,000 leave each year
Of course, it could be argued that the number of age discrimination claims are comparatively low because we, as a nation of employers and HR teams, have nailed anti-age discrimination and incidents just aren’t that common.
Yet anecdotally, I would not agree with this claim – and the L&G report suggests the same.
As employment lawyers, we often have to advise clients that age discrimination cases are incredibly hard to prove. There is rarely the smoking gun of an ageist comment to rely upon – the age group relied upon must be carefully identified, and unusually, employers potentially have the “objective justification” defence to argue.
The classic example of this being health and safety requirements on a construction site meaning diminishing physical strength increases risk of harm to the worker. Due to this, rejecting an application on grounds of age would not necessarily be discriminatory.
However, workplace discrimination in most of its guises tends to be more subtle, especially where unwritten but endemic cultural policies or practices dictate. Older, or indeed younger, female, pregnant, disabled, non-white colleagues can be overlooked for promotion, excluded from social activities, or their contributions discounted. Add in the likelihood that the older part of the work force will be more experienced so more expensive, may have caring responsibilities, and may be more likely to have health issues requiring a more flexible working regime, we have a perfect storm of reasons to recruit and retain younger workers in preference to older jobseekers.
Employers should therefore consider it timely to review their policies, and in particular the practices that are operating in the business, in respect of recruitment, retention and working culture, with an eye to any age-related discrimination pitfalls:
- Is your recruitment process safe? Does it minimise the opportunity for bias or exclusion of specific age groups, such as older workers?
- Is it time to retrain decision makers, managers and colleagues on their own responsibility when it comes to promotion, inclusion, and recognition of the value of a diverse workforce? Can you “take the temperature” (for example by means of an anonymised and confidential survey) of the culture you are promoting internally, including in respect of attitudes to age including unconscious bias, as well as abject, less favourable treatment based on age?
- Have lessons been learned from any complaints or grievances – whether formal or informal – that have been raised that have mentioned age discrimination?
- Where you do identify policies or practices or age-related restrictions, can they be objectively justified, for example by reference to health and safety, or genuine business needs, which should be distinct from pure financial reasons?
- If your business were to be hit with a claim for age discrimination, what will your employee profile look like in terms of the diversity of your workforce in respect to the age groups which make it up? If that workforce shows a tendency to be skewed in favour of a limited age grouping or range, you may need to look at the culture you are fostering, from recruitment through to retention, and prepare what would you tell a Judge about steps your business takes to prevent age discrimination in all its guises.
If we are right in warning that age discrimination is on the rise, and that employment tribunal judges will be equally aware of any upward trend, then employers and their HR teams cannot afford to be complacent.
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