Mark Twain once said “Age is an issue of mind over matter. If you don’t mind, it doesn’t matter” – except in the employment context!
Ageism is perhaps one of the most common (but least acknowledged) forms of discrimination in the workplace. Examples include being denied a job, selected for redundancy, being fired, or viewed “unfit” for promotion due to age. It therefore comes as no surprise that “age” is one of the protected characteristics under the Equality Act 2017 (the “Act”) which came into effect on 1 January 2020 providing employees with legal protection against discrimination, harassment and victimisation on the basis of their age.
With an ageing population, increasing state retirement age and cost of living and the fact that there is no statutory obligation for employers to provide a pension in the Isle of Man (meaning people are working longer to build up their “retirement pot”), it is inevitable that the employment tribunal will see an increase in age discrimination related complaints.
It is worth noting that age does not always mean an “older person” being preferred over a “younger person”, or vice versa. The age difference can be relatively small, ie a few years between someone in their late fifties compared to someone else in their early sixties. Similarly, a person aged twenty-one may well be treated differently to someone in their forties, however they can share the characteristic of being in the under fifty age range.
Types of discrimination
- Direct discrimination – occurs when an employee is treated less favourably because of (i) their own age (ie direct discrimination); (ii) the age of someone they are associated with, such as a family member or colleague (ie direct discrimination by association); (iii) the age they are thought to be, whether the perception is correct or not (ie direct discrimination by perception) and in each case, irrespective of whether the discrimination was intentional or not. For example, choosing whether to employ someone, making them redundant or promoting/demoting someone because of their age, regardless of their ability or experience.
- Indirect discrimination – occurs when a working practice, policy or rule is applied equally to all employees but puts an employee, worker or job applicant of a particular age or age group at a disadvantage. For example, if a policy is implemented which requires employees to have at least 10 years’ service before being eligible to apply for a promotion, this means that employees under the age of 26 cannot be promoted. Or, only offering a training course to graduates, potentially discriminating against older employees.
- Harassment – occurs where an employee is subject to unwanted conduct related to their age, the age they are thought to be or the age of someone they are associated with (ie a partner/spouse) which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, or of violating their dignity. This may include bullying, the use of nicknames, threats, comments and/or excluding them. The most common form of harassment found in the workplace is unwanted jokes and/or gossip – NB “it’s just banter” is not a defence!
- Victimisation – occurs when someone suffers a detriment (something which causes a disadvantage, damage, harm or loss) as a result of making an allegation of discrimination supporting a complaint of discrimination, giving evidence relating to a complaint about discrimination or raising a grievance concerning discrimination. This may include an employee being labelled a “troublemaker”, being left out or ignored, being denied training or promotion or being dismissed because they supported an age discrimination complaint.
Can age discrimination ever be justified?
Age is the only protected characteristic that allows employers to directly and/or indirectly discriminate against an employee because of that person’s age if the employer can show that the reason for the less favourable treatment is “objectively justified”. The burden is on the employer who must show that its actions – or the working practice, policy or rule – constitute a “proportionate means of achieving a legitimate aim”. In other words, they would need to demonstrate that there is a good business reason (cost alone is unlikely to be considered sufficient) and that the actions – or relevant rule, measure etc – are proportionate, appropriate and necessary. The employer must balance its business need against the discriminatory effect on the employee(s). The more discriminatory the effect, the more difficult it will be to justify and each case will be determined on its own facts.
In McCririck v Channel 4 (2013), TV presenter John McCririck, 73, was dropped from Channel 4 racing and a new team led by Claire Balding, 42, took over. McCririck claimed the decision was due to his age. Channel 4, however, argued that many people were repelled by McCririck’s persona which had become well known as a result of his appearances on reality TV shows such as Celebrity Big Brother and Celebrity Wife Swap. Channel 4 was able to demonstrate that its decision was made for good commercial reasons that were unconnected to age, hence there was no “less favourable” treatment because of age for discrimination law purposes. The tribunal accepted Channel 4’s argument that the presenter’s “pantomime persona” was unpalatable to a wider audience.
Harassment or victimisation, whether because of someone’s age or because of one of the other protected characteristics, can never be objectively justified, however.
Can an employer be held responsible for the actions of its employees?
Yes, potentially.
If one employee discriminates against or harasses another, the employer will be liable unless it can show that it has taken “all reasonable steps” to prevent such conduct from taking place. The offending employee may also be personally liable for the discriminatory act(s). The most common causes of harassment in the workplace are derogatory and/or abusive comments relating to age. Nevertheless, “ageist language” at work is often overlooked or downplayed as innocent banter. Examples include using the phrases “old-timer” “over the hill” or saying that a young employee is “still wet behind the ears”. Even when something is expressed or intended as a joke, if it has caused offence, the employer should address the matter directly with the offender and explain the effects of their conduct. In more serious cases, and particularly where the comments have been used deliberately to embarrass or humiliate someone else, the employer may wish to consider formal disciplinary proceedings in accordance with their disciplinary policy/procedure.
This was demonstrated in the case of Glen Cowie v Vesuvius (2021) whereby Mr Cowie was successful in his age discrimination claim against a FTSE 250 company after he was referred to as an “old fossil” who “did not know how to manage millennials”. The tribunal in this case also found that the company’s policy on recruiting under forty-fives for management positions went beyond legitimate succession planning.
Can employers succession plan without the risk of an age discrimination complaint?
Employers must be able to plan for succession and avoid being hostage to the “incumbency” trap ie where employees cannot progress until a more senior person leaves (either by way of retirement or moving jobs). There are challenges – for example, compulsory retirement ages, unless objectively justified, are considered “null and void” since the introduction of the Act. Given that, for many jobs, there is no fixed retirement age, retirement will largely be dictated by someone’s pension and their own personal choice as to whether they want to keep working or not. That does not mean, however, that an employer cannot successfully plan for the future provided their approach is appropriate and non-discriminatory.
For instance, you can ask an employee about their short and long-term plans to help strategically plan for the future of the company and its business needs, but you should not raise or orchestrate discussions about the possibility of the employee retiring. Employers must also be cautious not to pressurise or bully an employee into retirement. The case of Hutchinson v Asda Stores Ltd (2020) found that suggestions made to an employee, aged 73 and showing clear signs of dementia, that she might want to consider retirement did amount to age discrimination on the basis that the suggestions would not have been made to a younger employee showing mental impairment. The tribunal in this case suggested that the employer should have sought medical advice on how the condition ought to be managed. In addition, the fact that retirement was suggested more than once after being rejected by the claimant, amounted to harassment on the basis of age.
It is also unwise to base employment decision on age as it is misleading to equate physical and mental ability with age. In contrast, employers should base decisions on competencies, qualifications, skills and objective job-related criteria.
Tips for employers to reduce the risk of an age discrimination complaint
- Recruitment – avoid any bias or stereotyping when writing job adverts or job descriptions which suggest/imply that a person should be of a particular age group, ie do not ask for “mature” applicants or only advertise on certain social media channels which are targeted at a younger audience. Be clear and transparent about what skills are needed for the role to allow managers to be objective when selecting applicants. When asking for experience, consider the type(s) of experience required for the role as opposed to length/number of years. Only ask for qualifications which are necessary and avoid setting “age limits” on apprenticeship/training programmes.
- Promotion – communicate vacancies and promotion opportunities to all employees irrespective of age or length of service. Remember, if an employee is good enough, they are old enough and also that chronological age is no indicator of value or ability!
- Pay and terms and conditions – terms and conditions should generally be the same, irrespective of an employee’s age. There are, however, certain circumstances where different treatment because of age may be lawful, ie national minimum wage and certain benefits which can be linked to length of service such as life insurance or pension contributions.
- Performance management – treat employees consistently when assessing performance and goal setting, regardless of their age. Appraisals should be fair and objective as well as measured against the job description, not based on perception of a person’s age. Enquire about an employee’s work plans but avoid asking whether they “plan to retire”.
- Redundancy – an employer should base the selection criteria for redundancies on skills, performance and abilities needed for the relevant role(s) and not an employee’s age, ie they should not select younger staff for redundancy instead of longer-serving employees to avoid higher redundancy costs. It is also advisable to avoid a “last in, first out” policy as this is more likely to discriminate against younger employees, generally speaking.
- Dismissal – only dismiss if there is a genuine (non-discriminatory) reason and having followed a fair process. Avoid using “ageist” language in the dismissal process eg making decisions on the basis of perceived ability to learn new skills or rationalising decisions due to a need for “fresh thinking”. At the other end of the scale, prioritising lengthy experience (unless justified) or “time served” in a role may be similarly problematic. The bottom line is that dismissing an employee because of their age (whether because they are too young or too old) is likely to be considered age discrimination unless it is objectively justified.
If you have any questions regarding age discrimination (or on any other equality or employment law topic), please do not hesitate to get in touch with our Employment Team.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains only advises on the laws of the Isle of Man and accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
