Are changes to age discrimination on the horizon?

Beverley Sunderland provides an update on case law and outlines proposals for revisions to this area

Age discrimination can occur where someone is treated less favourably because of their age, because of the age of some other third party, such as their child (associative discrimination), or where someone is perceived to be older or younger than they actually are. There can be direct and indirect discrimination as well as harassment and, uniquely in discrimination law, direct discrimination can be objectively justified.

The fine margins within which age discrimination operates were demonstrated in Canadian Imperial Bank of Commerce v Beck (2010), where a 42-year-old head of marketing for the Canadian Imperial Bank of Commerce, Achim Beck, was made redundant, but the internal memo for the newly created role of marketing executive said they must be “younger and more entrepreneurial”. Even though his replacement was 38, Beck won his claim for age discrimination.

At the other end of the spectrum, in Mrs E Jolly v Royal Berkshire NHS Foundation Trust (2019), an 88-year-old hospital secretary was dismissed for allegedly failing to upload details of cancer patients onto a new database, which meant they had to wait an extra year for treatment. During the process she suffered upsetting comments about her age and the tribunal held that she had been made a scapegoat and her dismissal was tainted by discrimination.

Comments made during recruitment and employment have been highlighted in a number of cases:

  • In Ms Carolina Gomes v Henworth Ltd t/a Winkworth Estate Agents (2017), Gomes won a direct age discrimination case against Winkworth Estate Agents when they told her she was “better suited to a traditional estate agency”.
  • In Constandinou and Kakkoufa v Supadance International Ltd and Others (2017), a general manager’s comment that “old workers, like old football players, need to leave so that it could bring in new blood otherwise the team would not be efficient” amounted to age discrimination.
  • In James v Coedffranc Community Council (2018), 67-year-old Mr James, during an interview for a parking attendant role with Coedffranc Community Council, was subjected to comments such as: “I’ve just noticed how old you are” and: “How’s your health anyway?” When he did not get the job, this was found to be discriminatory.
  • In Alannah Davies v Quick Snack News Caerphilly (2019), a Facebook job advert stating “over-25s only” was enough to shift the burden of proof so it was for the employer to show their dismissal of an employee was not on the grounds of age. The employer was able to disprove discrimination because they had actually taken on someone under 25 despite the advert.

One of the only appellate court decisions in recent years is Air Products Plc v Cockram (2018). The Court of Appeal concluded that good leaver provisions in long term incentive plans, which only allowed these to be retained by departing employees if they were retiring at a ‘customary retirement age’ (55 or over), were directly discriminatory on the grounds of age, but could be objectively justified on the basis that the employer wished to achieve intergenerational fairness and consistency, reward experience and loyalty, and ensure a mix of generations of staff.

In July 2018, the Women and Equalities Committee found age discrimination in the workplace to be widespread. It made several recommendations, including: making flexible working the default position from the time jobs are advertised; introducing five days’ paid carers’ leave; and making a longer period of unpaid leave available to care for older relatives. Only flexible working has attracted the attention of government and that is mainly in the context of working mothers.

Keeping abreast of recent age discrimination case law can be useful in emphasising the risk to any business. Using this to update managers – especially with those recruiting staff – will help reduce the risk of any verbal or written comments that result in an age discrimination claim. 

Beverley Sunderland is managing director of Crossland Employment Solicitors