The continuing public health crisis exacerbates existing risks for employers in respect of potential age discrimination in the workplace. As employers consider their response to the UK government’s evolving policy on Covid-19 (which has included a backtrack on encouraging people back into the workplace if they can work from home), employers must ensure any decisions do not directly or indirectly discriminate against those with a protected characteristic, including age.
Businesses must maintain a Covid-secure work environment and keep associated risk assessments under periodic review. The government categorises ‘clinically vulnerable’ people as being more at risk in respect of coronavirus, which includes people who are 70 or older. But well-intentioned employers that introduce blanket prohibitions on willing older workers returning to the workplace from furlough, or who plan to make vulnerable employees redundant, are likely to be directly discriminatory on grounds of age.
However, unlike other protected characteristics, direct age discrimination can be objectively justified if there is a proportionate response to achieve a legitimate aim. Employers must make sure they can demonstrate this. For example, if a particular area within a workspace cannot be made to be Covid secure, it may be legitimate and proportionate to exclude older employees from that space. However, if employers are considering implementing a blanket response to Covid-19, that response must be assessed for specific risks and tailored accordingly.
Consultation with workers will be a key component of businesses’ risk assessments. It remains to be seen how employers’ decisions will be challenged in employment tribunals in the next year.
Levy v McHale Legal
Last year an employment tribunal found that Mr Levy, a 57-year-old senior solicitor who applied for a position at a law firm, had been discriminated against on grounds of age because of the firm’s perception that he was ‘expensive’ given his experience, which was synonymous with him being older. Both Levy and the firm had made applications to reconsider the awarded damages of £13,200.
Levy had sought an uplift in the award to reflect potential stigma against him in the market generated because of his claim. The firm maintained that the facts had been misinterpreted at the original hearing. Both applications were dismissed.
Levy could present no evidence that he would suffer a detriment because of stigma associated with bringing a claim for age discrimination. The case shows that, although tribunals are willing to make not insignificant awards for findings of age discrimination, this may stop short at recovering damages for potential detriment to a claimant because of an unsubstantiated stigma in bringing a claim against a potential employer, where there is no actual evidence of such stigma.
Delve and another v The Secretary of State for Work and Pensions
In September, the campaign group BackTo60 supported claimants in a Court of Appeal challenge against the Department for Work and Pensions for compensation for women born in the 1950s for age (and sex) discrimination. The claim was in respect of loss of pension because of the raising of the state pension age from 60 to 66, in line with that of men.
The court, however, unanimously rejected the appeal. This was principally because it was not possible to determine that the government’s decision to incrementally revise the age threshold, to strike a balance between sustaining state pensions with the potential hardships that the underlining policy would generate, was “manifestly without reasonable foundation”. It is likely the decision will be challenged in the Supreme Court, however, and employees born in the 1950s will be alert to the final outcome to inform their decisions on retirement planning.
Adam Penman is an associate in the labour and employment team at McGuireWoods