Two cases of age discrimination have hit the headlines recently. This blog examines these cases and the useful reminders they provide for employers to avoid pitfalls that could inadvertently constitute age discrimination.
Age discrimination and the law
The Equality Act 2010 protects workers from being discriminated against due to their age by way of direct discrimination, indirect discrimination, harassment, or victimisation. Unlike other protected characteristics, it is possible to objectively justify direct age discrimination where an employer can show its treatment is a proportionate means of achieving a legitimate aim. There are also other exceptions to age discrimination, including benefits based on length of service, redundancy pay and the occupational requirement defence, under which employers can stipulate that only people of a certain age group can do the job because of the nature of that job.
Case study one: Mr D Finch v (1) Clegg Gifford (2) Shirley Bellamy
In this case, Mr Finch was a 66 year old insurance broker who suffered from a number of health issues. The second respondent, Shirley Bellamy, was his managing director.
At tribunal Mr Finch was successful in his harassment claim on both age and disability grounds by showing he was subjected to humiliating and degrading treatment by Mrs Bellamy. Examples included Mrs Bellamy repeatedly asking him “are you planning on a nap this afternoon” and remarking that he had been around “as long as Pontius was a Pilate”.
It was also held that the claimant had been subjected to victimisation when a settlement offer was withdrawn following a letter before action setting out his potential discrimination claims. When Mr Finch resigned as a result the tribunal found this to be a case of constructive unfair dismissal.
Case study two: Rachel Sunderland v Superdry Plc
The second case of age discrimination in the news is an illustration of systemic failure to confront unconscious bias in the workplace. It serves as a reminder that such behaviour can also lead to findings of unlawful discrimination, even in the absence of overt discriminatory comments.
Ms Sunderland was an expert designer with over 30 years’ experience in the fashion industry and she joined the Superdry team as a designer in 2015. Over the next five years, the tribunal found that she was not promoted (despite positive appraisal feedback) and that despite her workload increasing significantly, she was offered minimal and ineffectual assistance to cope with her workload. The claimant resigned in July 2020 having still not been promoted. During her notice period, a woman with 20 years less experience was recruited as lead designer.
The tribunal found that the Respondent’s treatment of the claimant was “in a significant part because of the claimant’s age”. Attempts to justify the claimant’s lack of promotion did not hold true. The assessment of the claimant’s flight risk as “low” was not based on any objective criteria and instead was because her managers judged that there was little risk of her leaving no matter how she was treated. The tribunal concluded this was because of her age and the perception that older members of staff were likely to be a lower flight risk. The respondent’s criteria for promotion were flawed and the tribunal held that a senior HR member was “shockingly complacent” in her opinion that they completely removed the risk of unconscious bias.
The tribunal concluded the claimant had been directly discriminated against and harassed because of her age and that this was not justified. She was awarded compensation of over £96,000.
For many employers, diversity and inclusion is a key theme on their ESG agenda. With four different generations in the workplace for the first time in history, the need to manage age diversity fairly and lawfully is of increasing importance for employers.
Both cases above are helpful reminders of what employers and senior managers ought not to do. Below we set out some practical takeaways for how get it right:
- If there is a pattern of older employees not being promoted, interrogate why that is and ensure that your promotional framework doesn’t lack objectivity. In the Superdry case, employees did not know what was required of them to achieve promotion. It’s not enough to rely on a belief that your promotional criteria remove risk of unconscious bias.
- Be cautious of loaded terminology when assessing performance. When the Claimant was described as “scatty” in Superdry the Tribunal thought this word verged on “abuse” and would not be used to describe a younger male colleague.
- Be aware of potential reverse engineering of the reasoning for not promoting an individual. For example, negative behaviour which is used as a reason to justify a decision not to promote could be the result of an unfair system or other potentially discriminatory treatment.
- When an employee raises concerns of discrimination, be careful not to behave in a way that could amount to victimisation, even if you are at the stage of negotiating a settlement agreement regarding their exit.
- Be sure that senior managers attend regular equality and diversity discrimination. In Finch, the Tribunal put the senior manager’s lack of such training down to the longevity of her career. For more, see our blog, Don’t let your equality and diversity training go stale.
- Be careful if an employee’s level of a flight risk is assessed subjectively for internal purposes. Even if this is not explicitly used as a factor for whether an individual should be promoted, it may feed unconsciously into the thinking. In the Superdry case this factor was held to be discriminatory by the Tribunal because it was based on unsubstantiated perceptions about age.
- If someone is suffering from disability and their performance has been impacted, be sure to consider using occupational health processes to assess what reasonable adjustments can be made to meet their needs. In Finch, the employer was too quick to move to a disciplinary process to address the Claimant’s underperformance related to his ill health.
For more information, see our blog Managing intergenerational differences and age diversity in the workplace.
If you require further information about anything covered in this blog, please contact Caitlin Farrar or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2022