Business Law & Compliance

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The legal side of ageism in business

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Three years ago, 18 per cent of 65 to 74 year-olds continued to earn a wage – today the figure has risen to one in four. With the current economy hitting pensions along with increased life expectancy, it is expected that the number of working older people will continue to rise.

Since the default retirement age was abolished in 2011, employers can no longer insist that workers retire at 65. In addition to this, from 2018 women will only receive their state pensions at the age of 65 – the same age as men do. This will then rise to 66 by 2020 and 67 by 2028 for both genders. The ailing economy means the government is less able to support the elderly; they are increasingly having to depend on themselves. This inevitably means the older generation is looking to stay in employment longer and the UK’s workforce is ageing.

With the number of age discrimination cases being brought on the steady increase, it is important that employers familiarise themselves with where the law stands on the growing issue of ageism in the workplace.

What does my business need to be aware of?

Under the Equality Act of 2010, age is one of an employee’s “protected characteristics” – along with sex, race, disability, religion or belief, pregnancy and maternity, gender reassignment, marriage and civil partnership, as well as sexual orientation.
This means a worker should not be treated badly or disadvantaged on account of their age or any other “protected characteristic” at any stage of their employment – including the recruitment process.

Recruitment

It is unlawful for a job advertisement to exclude the older demographic – so if you are looking to hire, make sure that your advertisement is not age-specific and that it does not suggest younger people may be advantaged on account of their age. It is important, for example, not to specifically state that you are looking for someone “young and dynamic”.

During employment

Once in employment, employers must also ensure that older employees are not excluded from activities and opportunities offered to younger members of staff. This can amount to age discrimination. 

For example, older members of staff:

  • Should always be offered an opportunity to participate in any training courses offered to younger employees;
  • Should not be overlooked for a promotion they would have otherwise been in line to receive on account of their age; and
  • Should not be mistreated, intimidated or humiliated on account of their age.

If an older employee is made to feel uncomfortable because of their age, or is offended by others’ behaviour towards them, they may bring a claim on this basis. If an employee is treated unfairly after making a complaint about discrimination, this is victimisation and a claim could also be brought on this basis too. 

Ending the employment relationship

“Workforce planning” is important for businesses and the law allows for this to be carried out without the fear of facing legal action – as long as there is fair and consistent treatment.

ACAS suggests that employers create a culture of workplace discussion, where employees’ plans for the future are discussed in a confidential and informal setting. This can be done as part of an annual appraisal for all employees. In this context it is safe to raise the subject of retirement, taking care not to make suggestions of age discrimination when raising this point. The key is not to assume that an employee intends to retire just because they have reached a certain age.

If an employee is dismissed because they are simply “too old” it can be considered direct discrimination and you may be at risk of facing legal charges as a result. However, this is not always the case – if the dismissal can be “objectively justified” it can be avoided altogether. However, the concept of what comprises an “objective justification” is still developing – it may include factors such as maintaining older workers’ dignity by avoiding the need for performance-based dismissals, or health and safety issues in certain industries.

Policies, consistent treatment and a clear message to all employees should create a business environment where workers of all ages are handled equally and with respect. Such treatment will help older employees to feel at ease when sensitive conversations are broached and this, in turn, should minimise the risk of age discrimination claims being brought against your company.

Sofia Syed is a solicitor in the Employment Department at Mundays LLP.

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