As the UK faces a challenging economic outlook and a possible recession by the end of this year, employers are likely to face difficult decisions as they seek to protect their businesses. Against that context, age-related discrimination continues to present a significant risk for employers.
Beware of direct discrimination
In the recent case of Mr D Finch v Clegg Gifford & Co, a 66-year-old insurance worker was told that he had been around “as long as Pontius Pilate” and advised to take his holiday entitlement “now” in case he was “not around” later in the year.
The tribunal found that by referring to the claimant in the singular, rather than as a collective, the intimation was that as he was shielding from Covid-19, that he was going to contract the virus and would die from it.
The tribunal ruled that the claimant had been harassed and victimised on the grounds of his age and found that he was justified in resigning from his position and claiming constructive unfair dismissal.
Menopause-related age discrimination
It has been reported that more women than ever before will experience menopause transition during their working lives. This, together with the number of tribunal cases that cite menopause increasing by 44 per cent in 2021, means there is a growing awareness among employers of the potential discrimination claims that can arise in connection with their treatment of women of menopausal age.
In McCabe v Selazar, the employment tribunal found that Mrs McCabe, a finance director aged 55, had been subjected to age discrimination when her employer dismissed her. The tribunal felt that the CEO's comment of “calm down… don't let the hormones get out of control” was evidence that he perceived McCabe as “a menopausal woman – that is, an older woman”. This, together with evidence that the respondent had asked a recruiter to search for a candidate who was more in tune with a young tech start-up company and that the CEO considered older people not to be familiar with IT, led to the conclusion that at least part of the reason for the claimant’s dismissal was her age.
EU AI Liability Directive
On 28 September 2022, the European Commission proposed an AI Liability Directive to balance the need to protect consumers with the goal of fostering innovation in the digital age. The new directive will establish a legal framework for artificial intelligence that will help victims (either individuals or businesses) access compensation for damage caused by AI technology. Among other things, the new rules will make it easier to obtain compensation where there is age discrimination in a recruitment process involving AI – including unlawful discrimination based on algorithmic processing, such as AI that exhibits a bias towards hiring younger workers.
The UK, having left the EU in 2020, will not need to transpose the AI Liability Directive into its national law. However, the UK government is still expected to bring forward a consultation as part of its own national AI strategy before the end of 2022. Whether the government’s proposals take on board any of the EU’s thinking remains to be seen. Regardless, UK-based employers with operations in the EU and UK developers of AI technologies hoping to introduce them into the EU will be subject to the AI Liability Directive.
For all employers, achieving a diverse and inclusive workforce requires dedicated and continual action. Tackling ageism in the workplace in all its forms remains more important than ever.
Daniel Stander is an employment lawyer at Vedder Price