Higher levels of Age Discrimination cases are emerging as older employees do not fear not receiving a reference

The past two to three years have seen the biggest changes to the workplace in recent years, from Zoom meetings to hybrid working. Senior management and HR departments must rapidly adjust to the new order. 

The pandemic threw certain sectors, the health sector in particular, into chaos and retired individuals were invited back into work to plug the gap. The latest report from the Office of National Statistics indicates that there are 1.468 million over 65s in employment, a record number. A less welcome statistic to employers is that age discrimination cases have also risen during the pandemic by 74%.

With the State Pension age eligibility edging further and further away together with many pension funds failing to keep pace with the rising cost of living are some of the factors that are driving older people back into the workplace due to necessity. 

Employers must also recognise that the continued strong focus on inclusion for all in the workplace is ignored at their peril, particularly with regard to older employees, who, when in situations where they feel that they have been unfairly driven from the workplace, do not have the commonly recognised restriction that prevents many disaffected employees from presenting a case at the Employment Tribunal; that is the need for a decent reference to obtain their next job. 

HR departments and senior managers must be vigilant in ensuring that older employees are treated fairly and not subjected to discriminatory derogatory comments or behaviour. 

Daniel Theron, Partner, points out “discrimination claims are subject to ceiling-less awards, should the allegations be proved. This will often include an award for injury to feelings (measured in accordance with the Vento Bands) and an award for loss of earnings. The most recent statistics indicate that awards in respect of age discrimination, in some cases, reached almost a quarter of a million pounds in 2019/20.” Daniel further commented “the Employment Tribunal does not have to consider the financial impact of a large award on a defendant. Generally. the conduct In the workplace leading to most successful discrimination awards invites a high level of compensation.”

Employers must ensure that they are doing everything they can to prevent an age discrimination matter from arising. It is not sufficient to mention the organisation’s stance on age discrimination during the induction of a new employee, there must be regular reminders and refresher training by HR departments so that all members of staff are fully aware of the legal position with regard to age discrimination. Age discrimination must be regarded in exactly the same way as all other types of discrimination enshrined in The Equality Act 2010, such as sex and race discrimination, it’s importance must be clearly understood.

In the event of a situation emerging where age discrimination appears to have occurred, an organisation that can demonstrate that it had taken every step to prevent such an occurrence may be more favourable regarded by an Employment Tribunal. A regularly updated training programme reminding and reinforcing the current employment law and the organisation’s zero tolerance of discriminatory behaviour will demonstrate that every effort has been made to advise staff on what constitutes discriminatory behaviour and to eliminate, as far as possible, and such conduct.

If employees are observed by colleagues and managers behaving in a discriminatory manner towards an older employee, steps should be taken immediately, and the perpetrator should be warned that they must cease such conduct immediately and a verbal warning should be issued together with an outline of the consequences should the behaviour be repeated. 

It is not a valid defence to say that comments were made in jest or that the person against whom the discrimination has occurred does not mind. In the successful case brought by Ms. Crompton against Eden Private Staff where Ms. Crompton was repeatedly asked by her line manager if she forget something “Is it Alzheimer’s again.” When Ms Crompton took her case to the Employment Tribunal her line manager sought to pass off the comments as banter and pointed out that another employee was referred to as “Debbie Dementia” by way of excuse. 

In another successful case, that of Glen Cowie versus Vesuvious Plc, senior executive Glen Cowie was told in a meeting that he was ”an "old fossil" and did not know how to deal with millennials.” 

Employers cannot predict if and when a member of staff will make an age discriminatory remark or behave in a discriminatory manner to an older employee but where the company policy can reasonably be said to be fully understood and if the company takes immediate action to sanction an offending member of staff who disregards the policy, it may go some way to mitigating a precarious situation.

Daniel Theron advises on litigation in family law, employment, cross-border debt recovery and defamation. Daniel has considerable expertise in contentious cross-border family law, including complex financial arrangements and enjoys a high level of success in both debt recovery and employment law. 

Daniel enjoys a reputation for being meticulous in his analysis of the merits of a matter and tenacious in his pursuit of a successful outcome for his clients. He frequently impressively navigates challenging situations culminating in an excellent level of achievement, in excess of all expectations.

For more information about the risks of age discrimination please contact Sam Groom, Daniel’s clerk, at SG@giambronelaw.com or please click here.