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:
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:
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”.
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.
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.
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