Despite the legal protections offered by the Equality Act 2010, the evidence shows that age discrimination remains a significant challenge for employers.
Here are a few recent cases that help convey the scale of the issue of ageism directed at employees at both ends of the age spectrum across organisations:
Mr M Bandura v Mr M Fernandez
The remedy hearing for this case took place in March 2022. A key takeaway is the sheer financial costs arising out of this case, providing a stark reminder that there is no statutory cap on discrimination compensation awards.
Michael Bandura, a butcher in a village shop, has been awarded more than £120,000 after he was replaced by a younger man. Bandura, 67, was ruled to have suffered age discrimination when his employer brought in a younger butcher after he went on temporary sick leave.
The tribunal found that the reason for dismissal was retirement and linked to the claimant’s age. The remedy hearing awarded Bandura a total of £121,462. The breakdown of this includes a basic award for unfair dismissal of more than £11,000; more than £19,000 for injury to feelings; a compensatory award for loss of earnings of around £48,000; along with a compensation uplift of 25 per cent due to not following Acas guidelines of more than £11,000.
Glen Cowie v Vesuvius
This is a case from December 2021, with the liability hearing listed for 9 May 2022. It involved several claims including a direct age discrimination claim against a FTSE 250 company. Mr Cowie was successful in his age discrimination claim after he was referred to as an “old fossil” who “did not know how to manage millennials”. The tribunal also found that the company’s policy of recruiting under-45s for management positions went beyond legitimate succession planning.
The hiring of employees under a certain age bracket has also been the subject of much debate online, with a viral TikTok video from a prominent clothing brand receiving both praise and condemnation for saying “POV [point of view]: you start a new company, and you only hire Gen Z”. The apparent failure to recognise the implication being that it is acceptable to openly discrimination hiring older people was seemingly lost and begs the question as to how an employer can foster a truly diverse and inclusive workforce with such blatant ageism at play.
Mr J Patel v Lucy A Raymond & Sons Ltd
Conversely, in another high-profile case from recent weeks, the issue of ageism directed at millennials (or those born between 1980 and 1999) has come under the spotlight. A 26-year-old accountant was dismissed and told by his employer that he was “too demanding, in common with his generation of millennials” and that he “expected things to be handed to him on a plate”. Mr Patel, who has dyslexia, brought claims against his former employer for both age and disability discrimination.
While Patel was successful in his disability discrimination claim, his age discrimination claim failed as the tribunal found that the claimant’s offence was related more to having been told he had been given everything on a plate, when in reality Patel felt “as a disabled person, brought up by a single mother who prioritised his education, and who himself had overcome numerous barriers to achieve academic success, that very little in life had been handed to him on a plate”.
These cases show that there is a long way to go for ageism in the workplace to be a thing of the past. While the D&I agenda has heaped focus on race, gender and disability, this is not a panacea so long as other protected characteristics such as age remain stigmatised. Ageism, and its legal counterpart age discrimination, present issues throughout the employment lifecycle and require attention and proactive steps.
Rachel Easton is an employment lawyer at Vedder Price