With people living longer and retiring later today’s workforce is more age diverse than ever before, presenting businesses with both opportunities, in terms of knowledge and experience sharing, and challenges, ‘overcrowding’ at senior levels. Employers must carefully navigate these issues to avoid age discrimination claims and promote a diverse and inclusive workplace.
Understanding Age Discrimination in the Workplace
Age discrimination can be experienced by both older and younger workers and it can manifest in various ways, from offhand comments about an employee being “out of touch”, to assumptions about an employee’s physical abilities based on their age. Seemingly innocent requirements may also be problematic if they disadvantage people of a certain age, for example requiring candidates to have 10 years’ experience will result in fewer young people being eligible to apply. Unless the 10 year requirement can be justified, this practice may be discriminatory.
Legal Framework Addressing Age Discrimination
Age discrimination is prohibited under the Equality Act 2010 (the “Equality Act”). The Equality Act applies to all aspects of employment, from recruitment and selection to terms and conditions, promotions, transfers, dismissals, and training. To minimise the risk of claims, employers should ensure their policies and practices comply with the Equality Act and that they take steps to address age discrimination where it occurs.
The Equality Act provides protection from:
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Direct discrimination (being treated less favourably because of age). An employer may escape liability if they can show that the less favourable treatment was ‘objectively justified’.
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Indirect discrimination (where a seemingly neutral provision, criterion or practice puts those of a certain age at a disadvantage). Again, an employer may be able to defend itself if it can show that its actions were objectively justified.
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Harassment (being subjected to unwanted conduct related to age, which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment).
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Victimisation (being subjected to a detriment because they have made a complaint about discrimination or assisted someone else with their complaint).
Defending direct and indirect discrimination claims by claiming ‘objective justification’ is no easy task and an employer wishing to do so will need to show that in taking the action they did they were pursuing a legitimate aim and that their actions were proportionate. In practice, this defence will only be available where an employer can demonstrate a well thought through approach and has evidence to support their position. Whilst much will depend on the facts, several employers have been able to show that having a compulsory retirement age was necessary to ensure career progression opportunities.
Recognising and Addressing Age Discrimination
Recognising age discrimination is the first step toward addressing it effectively. Training, particularly of managers and senior staff is critical as is encouraging an open culture where concerns can be raised without fear of recrimination. Larger employers should consider whether data collection may assist in identifying less obvious forms of age discrimination, such as biases within recruitment and promotion processes.
Whatever forms of monitoring are used, it is imperative that employers act on any concerns of age discrimination and behave in accordance with their policies. Those that fail to do so will be expected to explain themselves. Legal risk aside, employers seeking to create an open and inclusive workplace shouldn’t shy away from addressing problematic behaviour.
Benefits of an Age-Diverse Workforce
Embracing an age-diverse workforce brings numerous benefits to an organisation. Older employees often bring a wealth of experience, knowledge, and stability, while younger employees may offer fresh perspectives and innovative ideas. This blend of skills and viewpoints can enhance problem-solving, creativity, and decision-making processes. An age-diverse workforce may also better reflect and understand an employer’s diverse customer base, improving customer relations and service delivery.
Overcoming Challenges in Promoting Age Diversity
Promoting age diversity can present challenges, such as overcoming stereotypes and biases that exist within the workplace. To address these challenges, employers must actively work to create an inclusive culture that values employees for their contributions rather than their age. This includes providing ongoing education and training to combat age-related biases and offering flexible work arrangements to meet the needs of employees at different life stages.
Conclusion
Age discrimination undermines the principles of fairness and equality in the workplace, negatively impacting both employees and employers. Defending claims can be costly and time consuming and compensation is unlimited. Our team of experienced legal experts is here to provide you with the guidance and support you need to ensure compliance and promote age diversity within your organisation. Contact us today to learn more about our services and how we can assist you in fostering a fair and inclusive workplace.
Employment Law Contact: Adele Martins, Partner & Head of Employment T: +44 (0)207 317 6719 E: [email protected]