Paul Holcroft, Associate Director of Croner, considers whether ageism is widespread following a recent ET decision:
An employment tribunal recently found that the dismissal of 88-year-old Eileen Jolly, a medical secretary at Royal Berkshire NHS Foundation Trust, was unfair and “tainted by discrimination”. The judge ruled that she had been treated differently by the trust by not offering her training and also one of her managers had referenced to her as being stuck in “old secretarial ways”. So how can employers ensure ageism isn’t widespread in their work place?
Although ageism may be seen as less of a focus for businesses than other protected characteristics, with continued government attention being levelled at issues such as the gender pay gap and lack of opportunities for minority workers, employers should be mindful of its occurrence. Age discrimination occurs when an employee is treated unfairly, or denied opportunities, because of their age. This form of discrimination can be heavily influenced by the assumptions of an employer, such as the belief that younger workers are less reliable or older individuals are unable to carry out the requirements of the job.
Direct age discrimination occurs when someone is treated less favourably because of their age when compared to another employee. This can include dismissing older an individual because they are ‘over the hill’ or making derogatory comments against a younger employee such as ‘poor millennial snowflake’. When recruiting for a job, employers will likely have an idea of the type of person they wish to hire, something that can influence their overall decision and give rise to unconscious bias.
For example, an employment tribunal found that a 67-year-old man was directly discriminated against when applying for a job as a parking attendant, as comments were made regarding his age during the interview and had his age deliberately noted throughout the process, so it was inferred that his age was taken into account during the employers final decision. Having several people conduct the interview, employers can discuss the reasoning behind a decision and identify if there is a bias associated with it.
Indirect age discrimination takes place when criteria or provision disadvantages someone of particular age. This can include requiring a minimum number of years’ experience or only offering a training course to ‘recent graduates’.
Whilst compensation can be uncapped in these cases, employers are able to defend their decisions if they are able to demonstrate they formed a proportionate reason to achieve a legitimate aim. For indirect discrimination, a legitimate aim can arise out of real business need, such as health and safety or rewarding loyalty. However, direct discrimination must go beyond the business needs of the employer and into wider public considerations. Employers must be able to demonstrate that the action taken was appropriate and necessary and that an alternative act could not also have achieved the aim.
Employers should remember that just because an employee has reached a certain age, does not mean they cannot still contribute to company; it might be that they can be utilised to train up new colleagues or assist in making key decisions as they’ve gathered experience in the area. Companies that hire younger workers can also benefit from a fresh outlook on certain areas which other staff members may struggle with, such as technology. Although high rewards of claims of age discrimination are rare, tribunals will assess the degree of hurt or distress experienced by the claimant due to this treatment.