Briefing: Age discrimination in the post-COVID-19 world

30 Jun 2021

Businesses have had to adapt to a whole new world over the past 15 months or so, and even with the talk of the final lockdown measures being lifted and things returning to ‘normal’ the big changes that have happened will continue to affect how businesses operate for some considerable period of time, if not permanently. In this briefing, Kerry Noon of rradar discusses how, when the furlough scheme finishes, many older workers could find themselves being made redundant.

Businesses will adapt, but not all, and some may close, while others restructure themselves to take account of the new trading environment. Where this leaves older employees, who have been on furlough and who may find their employers no longer need their services, is just one more issue that needs to be confronted.

Statistics show that there are still over a million workers over the age of 50 on furlough. The scheme, which finishes at the end of September 2021, was aimed at ensuring that workers who might otherwise have been made redundant when their employers were hit by the reduction in business during the three lockdowns and associated social distancing, would retain their jobs.

However, some people are concerned that when the furlough scheme finishes, many of these older workers could find themselves being made redundant, with consequences for unprepared employers.

The scale of the problem
Figures released by the Ministry of Justice show a significant increase in the number of Employment Tribunal claims for age discrimination since March 2020 when pandemic measures were introduced. The figures from the final three months of 2020 show that cases increased by 176% - and for the whole of 2020, they rose by 74%.

As a proportion of the total number of tribunal claims, the figure is all the more significant since the total number of tribunal claims went down during 2020.

The issues
The financial pressures put on companies during the lockdown have meant that many have looked for ways to stave off ruin; it is common to find, when reviewing such measures, that older workers are more likely to be higher paid, and therefore, making them redundant would save the employer more than reducing the number of younger workers.

Records show that unemployment levels amongst those in their 50s and 60s increased by nearly 50% in the last year, and more over 50s are being made redundant than ever before. This picture will only get worse as more older workers start looking for jobs. A significant number of those may find themselves back in the job market within a few months, increasing demand for relevant vacancies.

Stereotyping older workers
Once made redundant, older workers are more likely to experience long-term unemployment than younger workers, for a variety of reasons; the misperception that they are slower at their jobs, more likely to take sick days, resistant to learning new methods and would not be with their employer long enough to repay the investment made in training – these are just some of the obstacles that face older employees.

In fact, statistics show that these misperceptions are very far from the truth: in 2011, the HSE reported that:

There is no consistent evidence that older workers are generally less productive than younger workers.
The evidence suggests that job performance is generally the same across all age groups.
Some studies have shown that older workers perform better in terms of accuracy and output consistency.
Productivity does not necessarily decline with age, probably because most jobs do not require employees to work at full physical and mental capacity.
Where age-related functional declines do occur in older workers, strategies, skills and experience can be utilised to compensate enabling productivity levels to be maintained.
There is great individual variability in capabilities of older adults, making generalisations unreliable.

Lack of awareness
Many employers are aware of the need for inclusivity and diversity through such initiatives as International Women’s Day, Mental Health Awareness, Black History Month and Pride Month, but few have any system in place for combatting age discrimination. It seems that not only is it ignored or downplayed but - in some cases - is viewed as acceptable.

Problems ahead
It’s also the case that for many older workers, qualification requirements for their pensions mean they have to continue working till age 66, so it’s in their interests to contest any redundancy rather than accept it, as might be the case for younger workers who are more likely to be able to find another job after redundancy.

Given this, it’s likely that decisions made by employers after the end of September 2021 about what happens to older workers on furlough are going to be contested by those workers if they end up facing redundancy. That will mean that the rise in tribunal claims will continue, and damages will be sought, particularly if the older worker feels that this is all the money they will see until retirement and their pension.

So what can the employer do?
The Equality Act 2010 includes age as one of the nine protected characteristics, meaning that it is generally illegal to discriminate against someone based on their age.

From an employment perspective, the Equality Act 2010 makes it unlawful to discriminate, harass or victimise job applicants, employees or trainees on the grounds of age, regardless of whether they are young or old. This can be in all aspects of work, from recruitment to redundancy, from selecting staff for promotion to identifying who will receive training.

Indirect discrimination can potentially be permitted where it is objectively justified. Age, however, is unique among the nine protected characteristics as direct age discrimination is capable of being justified if it is a ‘proportionate means of achieving a legitimate aim’.

This means that an employer can make a decision based on a person’s age if they can show that it is objectively justified and proportionate. This should only be a defence in a limited number of circumstances and does not mean that employers have ‘free rein’ to discriminate against workers on the grounds of age.

There is no exhaustive list of potentially legitimate aims but examples from cases in the UK courts include:

Promoting the recruitment of younger workers.
Promoting inter-generational fairness.
Creating a balanced workforce.
Ensuring dignity for older staff members.
Rewarding experience.

Whether a legitimate aim applies can only be decided upon by an Employment Tribunal and their decision will depend on the particular set of facts. You should always seek legal advice before making a decision like this.

Key points to ensure that you do not discriminate:

Do not use age as a criterion when recruiting staff or any other selection process, such as promotion or redundancy.
Do not pre-judge the skills or abilities of job applicants because of their age.
Do not allow stereotypical thinking or bias about age affect how you manage staff.
Do not set age limits when asking people to apply for jobs, promotions or training.
Be careful of asking for a number of years’ experience. Instead, ask for types of experience.
Be careful not to use ageist language.

Aside from very specific circumstances, employers cannot force employees to retire. The national default retirement age was abolished in 2011 and this has been a major contributing factor to the increase in older employees in the workplace.

Kerry Noon is HR Advisor for specialist litigation and commercial law firm rradar.