As we have previously analysed, hybrid working and use of remote technology means that certain roles have now become more accessible than was previously the case. The benefits for older employees are clear: the opportunity to work from home if health problems are an issue and the ability to avoid the daily commute after a long career working in city centre offices.
With growing numbers of older employees choosing to remain in the workforce comes an increased risk of age-related tension. Older employees may be concerned with keeping their roles for as long as possible due to various financial and other factors, such as the cost-of-living crisis and the rising state pension age. The expertise of more senior staff member may also be invaluable to the business. However, younger colleagues will expect effective succession planning, opportunities for career progression and a supportive work environment. Employers must balance the competing interests of different age groups carefully.
In this article we review the law relating to age discrimination and highlight a particular risk area – the often-overlooked concept of reverse ageism and potential employment claims from younger employees.
Age discrimination: the law
Age is one of the nine protected characteristics covered by the protection from discrimination in the Equality Act 2010 (the “Act”). A wide range of people are protected, including job applicants, workers, employees, partners and LLP members.
Broadly, the Act provides protection from:
Direct discrimination: which is less favourable treatment because of age (unless it can be objectively justified), for example a manager’s decision not to talk to employees over 55 about career ambition and training opportunities because she believes they will want to relax in the run up to retirement.
Indirect discrimination: which is where a provision, criterion or practice (PCP) is applied by an employer that disadvantages those in a particular age group (unless it can be objectively justified), for example a requirement that job applicants have at least eight years’ previous industry experience, which younger people could not satisfy.
Harassment: which is unwanted conduct relating to age which violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them, for example where a manager repeatedly tells a 63 year old employee in front of her colleagues that she is “out of touch” and “fresh blood” is needed.
Victimisation: unfavourable treatment in response to a complaint of age discrimination (or the intention to make a complaint) under the Act, for example an employee receives a lower pay rise and bonus than his colleagues after raising a grievance in relation to older employees who make fun of him because of his age and play pranks on him like leaving toys on his desk.
Note that, unlike other protected characteristics, employers facing claims for either direct or indirect age discrimination have a potential defence of objective justification, if they can show that their actions are a proportionate means of achieving a legitimate aim. This sets a direct age discrimination claim apart from other direct discrimination claims under the Act (such as in relation to sex, race, and religion or belief), where there is no justification defence available.
So, for example, a compulsory retirement age in a law or other professional services firm may be lawful and enforceable despite being directly related to the age of a partner. However, justification is harder to establish in the case of direct age discrimination, as opposed to indirect discrimination, because employers must be able to point to a “social policy” legitimate aim, such as a national employment policy, and not simply their own private business interests.
Reverse ageism: stereotyping of younger workers
Traditionally, age discrimination is perceived as affecting older workers, but there is evidence to demonstrate that younger workers also face similar issues. A Glassdoor diversity and inclusion survey found that 48% of 18 to 34 year olds employed in the UK reported that they had experienced ageism, in comparison to 25% of those aged 55 and over.
Age discrimination of younger age groups will often be less obvious than that faced by older colleagues who, for example, may be subject to a policy in relation to retirement age or an age-related cap on benefit entitlements. A workplace which seems diverse and inclusive at first glance may still struggle with inadvertent bias and misconceived beliefs held by those in senior management roles. For example, there is a common negative perception of millennial and Gen-Z workers as being less inclined to work hard and having an inherent sense of entitlement when compared to older generations.
Fostering such beliefs can easily land employers in hot water, as the employer found out in the recent Employment Tribunal case of Patel v Lucy A Raymond & Sons Limited. Comments were made by a senior manager to a dyslexic employee that he was “too demanding, in common with his generation of millennials”. The claimant’s age harassment claim was ultimately unsuccessful, as the Tribunal held that offence had been taken not because the comment related to his age, but because it suggested that he had been given everything “on a plate”, when in fact he had overcome various barriers in relation to his dyslexia to achieve academic success.
However, it is not hard to envisage similar comments leading to a successful age-related claim. The case is a reminder that reverse ageism is a potential pitfall for the unwary employer.
Key steps for employers
In addition to the legal risks, treating younger employees less favourably (whether because of a general perception that they are entitled or lazy or otherwise) is likely to prevent the progression of talented employees and damage future recruitment prospects.
Similarly, any assumption that older workers are (for example) not willing to adapt or cannot cope with changing technology may prevent employers from leveraging their considerable knowledge and experience. Both are examples of generalised beliefs which managers should be encouraged to analyse and question.
As such, we recommend that employers consider the following key steps:
Provide regular equality & diversity training.Delivering regular equality and anti-harassment training to employees is a helpful way to ensure that they understand the obligations owed to colleagues and to alert them to the risk of making decisions which are tainted by unconscious bias.
Regular training can also assist employers defend any future discrimination claims they may face. In particular, the “reasonable steps defence” set out in s109(4) of the Act enables an employer to escape liability for acts of discrimination or harassment by an employee towards their colleagues, so long it took all reasonable steps to prevent it from occurring. However, while the provision of training is an important element of any such defence the case of Allay (UK) Ltd v Gehlen confirmed that employers should ensure that the training is robust and effective and not “stale”.
Avoid making age-related assumptions. It is important that assumptions are not made about any candidate or employee’s age. There can often be a temptation to guess someone’s age or to assume an age based on appearance or personality traits. Employers could also face liability for age discrimination based on their perception of age, even if it transpires that the employee is actually older or younger. For example, if an employer were to suggest that an employee “didn’t look mature enough” for a client-facing role, based on their belief that an employee was in their early twenties (when they are actually in their thirties), the decision not to offer them the role on that basis could lead to a successful discrimination claim.
Watch out for “banter”. Employers should remind employees that it is not acceptable to make potentially discriminatory and derogatory comments towards others in the workplace under the guise of it being “banter”. Making inappropriate offensive comments relating to an individual’s youth could result in a harassment claim. For example, the case of Roberts v Cash Zone (Camberley) Ltd concerned an 18-year-old store supervisor who was described as a “stroppy kid” and “stroppy little teenager” by her line manager. Although the words “kid” and “teenager” were factually accurate they were used in derogatory and stereotypical manner.
It is also damaging for staff morale, especially when younger employees are likely to be struggling with imposter syndrome at a higher rate than their seniors. A recent mental health and wellness report by the job site Indeed notes that millennials (25 to 39 years old) are the group most likely to suffer from imposter syndrome in the workplace, with 27% of this age group admitting to feeling fraudulent, in comparison to only 3% of workers aged 65 and over. Employers should therefore ensure that workplace “banter” between different age groups does not overstep the mark into bullying and harassment and should remain conscious of the wider negative impact on certain parts of the workforce.
Offer reverse mentoring. Reverse mentoring rearranges the traditional mentoring model and involves younger employees mentoring senior executives and staff members. The key aim is to enable senior employees to better understand the fresh perspective of younger employees at an earlier stage of their careers, which in turn can help promote diversity of thought within the organisation and the retention rate of younger staff, who are likely to feel more engaged in their employer’s business. A mentoring relationship also overcomes the potential stigma of reporting negative age-related experiences, creating a safe space for younger employees to offer feedback to management in a way that is valued within the organisation. In turn, traditional seniority structures – which are often seen as intimidating by younger employees – are softened in a way that promotes collaboration and inclusivity across the workforce.
Reported Employment Tribunal decisions featuring allegations of age discrimination towards younger workers remain comparatively rare. This is perhaps unsurprising, given the risk of long-term career damage which comes with pursuing a legal claim against an employer, in addition to the costs of seeking legal advice.
However, we believe employers may see a rise in the number of age-related complaints over the coming years as the age range of the working population continues to expand. Employment Tribunals are likely to have sympathy with millennial and Gen-Z workers who may be facing inherent prejudice in their workplace. Similarly, those at the opposite end of the age spectrum may face growing pressure to retire so that their employer can succession plan and offer senior opportunities to rising stars.
A business which recognises the need to take proactive steps to create and maintain an inclusive culture will not only be better placed to avoid future liability for age discrimination claims but may also enjoy the added benefits of higher workforce morale and productivity. The key takeaway for employers is that ageism can crop up in a range of scenarios and all employees (regardless of age or seniority) should be reminded of the need to treat their colleagues professionally and with respect.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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