New guidance on age discrimination

22 Feb 2019 By Joe Nicholls

Joe Nicholls analyses the new ACAS guidance on age discrimination and outlines pitfalls for employers who don’t heed it

It is unlawful to discriminate against someone because of their age, and in most cases it is unlawful to require someone to retire. Despite this, age discrimination is common in the workplace. Some reports suggest that up to one-third of job applicants have been refused a job because of their age and a higher percentage still have been told they are too young or too old for promotion. 

As a population, we are working longer and retiring later, so without effectively managing ageism, employers may find themselves more frequently in difficulty. 

Discrimination can take several forms, including treating someone less favourably than they would treat others because of their age, implementing a way of working which disadvantages people of a particular age group or subjecting someone to humiliating, offensive or degrading treatment because of their age. 

In certain circumstances, treating someone less favourably can be justified but it would have to be shown that it was objectively reasonable in the circumstances. For example, pay and benefits increasing with length of service on the face of it negatively affects younger people, but may be justifiable and therefore lawful.

What kind of things am I looking for?

There are obvious things to avoid, such as refusing a candidate a job because they appear to be too young or too old to do it. There are more subtle signals, with people stereotyping by making assumptions, or using ageist language to describe someone. Helpfully, ACAS this month published guidance on what constitutes age discrimination. The new advice includes guidance on recruitment, training, performance management and redundancy and other areas where age discrimination may be most likely to occur.

Key considerations for employers include:

  • remarks about someone’s age are likely to be discriminatory, even if they aren’t meant to be insulting;
  • don’t pressurise or bully an employee into retiring and remember that generally the law doesn’t have a fixed age for someone to retire by;
  • treat employees consistently and fairly when assessing their performance and setting future goals, no matter what their age;

The guide is also accompanied by myth-busting advice, which includes the following common myths: 

  • older staff are more likely to be off work ill;
  • older people staying in work stops young people getting a job;
  • an employee must retire once they start taking their state pension;

These misconceptions are entirely contrary to evidence. It’s also true that age discrimination doesn’t just affect older workers. Anyone can be discriminated against because of their age, irrespective of whether they are in their 20s, 40s or 80s.

An 88-year-old secretary employed at an NHS hospital succeeded in her employment tribunal claims for age discrimination and unfair dismissal in early 2019. She was reportedly described by the surgeon with whom she worked as being ‘reliable and meticulous’ but despite this was blamed for alleged data input failures. The failure to provide adequate training and allow her the opportunity to improve her alleged performance inadequacies left her having been treated unlawfully.

In late 2018, a job applicant succeeded in a claim for age discrimination when he was reportedly asked about his health after the interviewer ‘noticed’ his age (67 years old). Although one of the strongest candidates according to the scoring of the panel, the employment tribunal found that his age was a factor in the decision not to offer him the job. 

Why is this important?

Compensation for age discrimination and harassment is uncapped, which means there is technically no limit to the amount of money an employment tribunal can award in a successful claim. When up to a reported third of people in work are aged over 50, it simply won’t benefit your business to ignore ageism and it is important to value your staff or future staff for their ability, irrespective of their age. 

Joe Nicholls is head of the employment law team at London solicitors Hodge Jones & Allen

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