PROSPER MAGAZINE: DIGITAL EDITION
AGE DISCRIMINATION CLAIMS RISE BY 74 PER CENT DURING PANDEMIC, ANALYSIS SHOWS BUT AGE SHOULD BE NO BARRIER
Reyhana Koser, Head of the Employment Team at Talbots Law, explains why age discrimination comes in many different guises and how Covid-19 has seen a spike in cases.
As a result of the pandemic, the Employment team at Talbots Law has experienced an increase in enquiries relating to discrimination and, in, particular, when it comes to age.
People may suffer discrimination regardless of what age they are. Young people may be refused a job because they lack experience and, equally, older people may be denied a role or overlooked for promotion because it may be considered that they are waiting to retire and do not necessarily want to work as hard.
Recently, we have responded to more enquiries for older people, especially those relating to more subtle ageism where they have been selected for and/or dismissed by reason of redundancy.
In response to the pandemic, most businesses have had to act quickly to restructure and introduce cost-cutting exercises that have resulted in a change in staff numbers.
When implementing redundancies some businesses have utilised methods of selection, which have, at the best of times, been questionable and at other times simply unfair and discriminatory in particular on the basis of age.
Some employers have used the current situation as an opportunity to dismiss older workers who otherwise would have continued working until pension retirement age or beyond. When questioned about this, companies have come up with a raft of reasons for the selection, such as performance and productivity issues - none of which have ever been raised with the employee prior to their selection for redundancy.
Age discrimination legislation is there to protect people who are treated unequally because of their particular age, or because they belong to a particular age group (for example 50 to 65-year-olds, 20 to 30-year-olds or the over 40s).
The law is designed to protect employees and workers of any age during all aspects of employment, including recruitment, terms and conditions of employment encompassing pay and benefits, promotion and transfer opportunities and dismissal.
The Equality Act sets out the different forms that age discrimination takes, and these include the following:
This is where someone has been or would be treated less favourably than others because of their age, whether it is their age, their perceived age or the age of someone they associate with.
For example, where an employee who is next in line for a promotion is overlooked in favour of someone who is younger. It is possible to justify direct discrimination and is referred to as ‘a proportionate means of achieving a legitimate aim’.
This is where a practice, provision or criterion introduced by an employer and which applies equally to all persons, puts a person at a disadvantage because of their age compared to others. So, for example, an employer is hiring for a new role, but applies the criteria that they require someone with 10 years experience – this would immediately disadvantage younger employees with less experience.
Another scenario is when an employer imposes a cut off age for graduate roles, affecting older people who have recently graduated.
This is where someone is subjected to offensive, intimidating or demeaning behaviour based on their age and such behaviour results in violating their dignity or creates a working environment that is hostile, intimidating or degrading.
Examples of harassment might include offensive comments about ageing or nicknames such as ‘grandad’ or ‘young lady/girl’. Just as with direct discrimination, harassment can include age discrimination based on someone’s perceived age or the age of someone they associate with, such as an elderly relative who works with them who is referred to as ‘an old codger’.
This is where someone is treated less favourably as a result of having made/tried to make or helped or tried to help someone who has made/tried to make a complaint of age discrimination under the Act.
As you can see, discrimination because of someone’s age can take various forms and it is imperative that businesses ensure that their practices are non-discriminatory and that they train their workforce on this area of law, in order to change attitudes and minimise complaints and the risk of successful claims.
If someone is successful in their claim, a tribunal can award compensation for financial loss and injury to feelings, which at times can be significant depending on the severity of the discrimination that has occurred.
The above is only a summary of the age legislation that has been implemented and, whether you are an individual suffering discrimination in the workplace, or an employer faced with a complaint of age discrimination, it is worth seeking expert advice to resolve the matter.