It may have happened to Selina Scott, so why should the pale, stale male be immune? 

The lovely fifty-something Selina has reportedly been passed over by Channel Five News as maternity cover for a newsreading slot and a younger model, or models, appointed (in the guise of a 28 year old female and a 32 year old male).  She claims age discrimination.  As she asked earlier this year: “How many women are there on mainstream current affairs programmes who are over 50?  Anna Ford has retired, Moira Stuart has been bumped, yet you look around and see lots of men”.  Five reportedly appointed a veteran (male) newsreader as maternity cover a couple of years ago, which may not help Selina’s claim.

Is this just a spat between a media luvvy and her employer, or is it a case of age discrimination?  Whatever the case, there are many men (this is not sexist, but this group is predominantly male), senior executives the wrong side of 50, sitting in their offices at the moment worrying about the economic climate and what the current downturn might mean for their continuing employment and future employability.

A recent survey by hrlaw.co.uk revealed that over a quarter of respondents expected to be making redundancies in the next 6 months.  There are reports that there will be around a thousand redundancies once Commerzbank takes over Dresdner Kleinwort, and many thousands as a result of the HBOS takeover (although being an employee in Scotland may be helpful in avoiding redundancy, if reports are to be believed).  Rumours abound in the press about the financial health of Morgan Stanley and Goldmans.  Retailers are cutting back (and sometimes, as with M&S, cutting back on redundancy terms).

What protection does the worried senior executive have against his age being a factor in any selection of candidates for redundancy?

The UK’s age discrimination legislation came into force in 2006.  There were only 19 employment tribunal cases in 2007 where compensation was awarded, although many more presumably will have settled before a hearing.  Inevitably this number will increase as awareness improves and as the harsh realities of the economic crisis that is affecting the City and the rest of the UK bite on older workers.

Traditionally, discrimination on grounds of age in employment has not been expressly prohibited. However, since the Employment Equality (Age) Regulations 2006 employers are prohibited from treating employees less favourably on the grounds of their age and from applying a provision, criterion or practice that puts someone of a particular age at a disadvantage.  Both direct and indirect age discrimination can be objectively justified. The test for objective justification is that the treatment should be "a proportionate means of achieving a legitimate aim". Examples of legitimate aims which might justify age discrimination  are:  health, welfare and safety; facilitation of employment planning; and  encouraging and rewarding loyalty.

The battleground tends to be around the question of justification.  In one case, Bloxham v Freshfields which involved a firm of solicitors, an employment tribunal dismissed claims of direct and indirect age discrimination brought against the firm by a former partner.  His claim arose out of changes the firm had made to its partners’ pension scheme in an attempt to provide a more financially-sustainable scheme that was fairer to younger partners.  Although the arrangements were prima facie discriminatory, the tribunal decided that they were justified.  In another case, (Seldon v Clarkson Wright) a compulsory retirement age in a partnership deed was justified because it ensured that junior solicitors are given the opportunity of partnership after a reasonable period as an associate, and do not leave the firm, and facilitated workforce planning.

These are both partnership cases.  However, they offer some pointers to a tribunal’s possible approach where employment issues are concerned.  Would an employer’s decision to select an older worker who had similar scores to a younger worker for redundancy because of the employer’s wish to ensure opportunities for more junior employees and to facilitate workforce planning be sufficient justification?  There is a possibility that argument will succeed.

Many claims will involve unfair dismissal as well as age discrimination. Compensation for a successful claim of unfair dismissal is limited to £63,000.  However, compensation for age discrimination is unlimited, and may include compensation to reflect injury to feelings.  Claimants must show that they have taken steps to mitigate their losses, which usually means attempting to find other work.  In the context of an employee who is dismissed towards the end of his or her working life, this poses some serious difficulties. Although tribunals will still require evidence of mitigation, it is likely to be easier for older workers to show that they could not mitigate their loss as they will never work again.  In these situations employers may have to pay compensation covering the employee’s total package for a number of years, even though they may have an income, (which, in some cases, has been funded by the employer) in the form of a pension.  The potential cost to an employer in the case of a well-remunerated senior executive can be substantial.

What does this mean for the troubled senior executive?  If he has a disciplinary record, a series of poor appraisals, patchy timekeeping, low productivity, he does not have much of a leg to stand on, whether he is 31, 41 or 51.  On pretty much any objective redundancy selection criteria, he will score lower than a colleague to whom those factors do not apply, and will not have much in the way of a sensible argument against his selection.

But if he is selected for redundancy, a younger colleague is retained, and his performance is at least as good as or better than the younger colleague, there may have been unlawful age discrimination.  The key will be how the employer seeks to justify its actions and decisions.  Some employers may decide to be open about the reason for selecting an older employee.  If they have their justification arguments marshalled and, importantly, any necessary supporting evidence collated, they may simply decide to say that the employee’s age was the final factor in his selection for redundancy, and rely on their ability to justify that action if challenged.  It is certainly a high-risk strategy, justification essentially being a question for the tribunal, but one that avoids the problems that will arise if the stated reason for selection is built on a fabrication.

Some employers may attempt to engineer a poor appraisal or a complaint about performance, to manufacture a smokescreen for their unlawful activities or to give them leverage in negotiations.  This will enable them to mark down the employee in the redundancy scoring matrix.  Tell-tale signs are that the conversation, or at least its contents, usually comes out of the blue, with no warning, and the employer, when challenged, has no concrete evidence to support the bald assertions made about performance or conduct, apart from unattributed and unverifiable non-specific third party comments.  The process may appear rushed, and will seem unfair.  It is therefore key that employer’s get their ducks in a row when dealing with dismissals so that employees do not have the impression that their dismissal is unfair or discriminatory.
Mark Watson is a pale, male, but certainly not stale, employment partner with City solicitors Fox Williams LLP.

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