Age discrimination update

23 Jan 2020 By Daniel Peyton

Daniel Peyton examines recent developments regarding pay scales, compulsory retirement ages and workplace banter

Tribunal claims

Annual employment tribunal statistics from the Ministry of Justice show that in 2018-19 there were fewer age discrimination claims than for any other area of discrimination except religion or belief, and sexual orientation. However, the highest award was £172,070 and the median award was £26,148, showing age discrimination claims can still be costly.

Guidance and legislation

Acas published useful age discrimination guidance in February 2019 (Age discrimination: key points for the workplace), but no major legislative developments are planned relating to age discrimination – for example, no age pay gap reporting.

Justifying a discriminatory pay scale 

In May 2020, the Court of Appeal will hear Heskett v Secretary of State for Justice. This appeal from the Employment Appeal Tribunal (EAT) concerns changes to a salary scale for probation officers that put younger employees at a disadvantage. The changes reduced the number of pay points employees would progress on its pay scale each year, meaning employees at the bottom would now take 23 years to reach the top, rather than seven or eight years. At the EAT, the probation service admitted that this discriminated against younger employees, but argued it was a proportionate means of achieving a legitimate aim (ie, to comply with the limit on pay rises).

The EAT accepted that cost-cutting alone cannot be a legitimate aim, but decided taking steps owing to the absence of means was not the same as simply cutting costs. Therefore, changing a pay scale to reflect the limited resources available for pay rises could be a legitimate aim. The changes were also deemed proportionate because steps were planned to reduce the long-term discriminatory effects of the change.

Therefore, pending the Court of Appeal decision, employers should carefully consider the sometimes nuanced difference between pure cost-cutting measures and those taken to allocate limited resources fairly.

Employer justified retirement age 

In Professor P Ewart v The Chancellor, Master and Scholars of the University of Oxford, the employment tribunal decided an employer justified retirement age (EJRA) was discriminatory and not justified.  

Ewart was forced to retire aged 69 under a retirement policy intended to allow younger academics to progress. The tribunal found the policy was not justified because it only increased vacancies by between 2 and 4 per cent. Therefore, its discriminatory effect outweighed its benefit to younger employees.

Interestingly, the opposite decision was reached in the slightly earlier case of Professor John Pitcher v The Chancellor, Masters and Scholars of the University of Oxford and others. In Pitcher, the tribunal found the EJRA was justified. Its limited impact on increasing vacancies was not significant because the policy was designed to rectify an approach to retirement that had been in place for decades and would take time to take effect.

First, these cases illustrate that any EJRA carries a risk; the same EJRA on similar facts was found to be justified and not justified by different tribunals. Second, this risk can be mitigated by having evidence that supports the purported justification defence. 

One to bet on for 2020: snowflake v boomer

‘OK, boomer’ is the generational catchphrase of the moment. Is it age discriminatory? This question has already been asked in the Supreme Court of the US this year (see Babb v Secretary of Veteran Affairs) and it seems inevitable we will see it arise in the UK soon.

The answer must be ‘yes’, by the way. ‘Snowflake’ and ‘OK, boomer’ are not intended to be neutral and we all know what they mean. Generational labels are as discriminatory as any other insulting stereotype of a protected characteristic. Maybe offended baby boomers don’t get the joke, but the ‘banter’ defence has a long history of failure in discrimination claims – and tribunals seldom ‘get the joke’ when discrimination is involved.

Daniel Peyton is the managing partner of McGuireWoods’ London office and heads its employment law practice

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