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16 June 2014 0 Comments
Posted in Employment, Opinion

Age discrimination – time for some changes

Author headshot image Posted by , Partner

Direct discrimination complaints have become increasingly rare in the workplace because many employers have strong equal opportunities policies which are reinforced by training and other diversity initiatives. Even in the absence of such policies, the majority of employees will be aware that directly discriminatory comments are unacceptable, whether in the workforce or otherwise.

Discrimination complaints generally arise from policies or practices which apply to all but have an adverse impact upon a particular protected group. Perhaps because age discrimination is a more recent concept, there are still cases where managers and employers have got into difficulties for making comments about an employee’s age, particularly in the context of performance management.

In 2012 a DWP report confirmed that age-related assumptions and stereotypes remain embedded in the UK.

A recent Employment Appeal Tribunal judgment highlighted the way in which age discriminatory remarks can result in protracted litigation, whether or not they influence decision-making in relation to an employee. Mr Clements worked for Lloyds Banking Plc. There were concerns about his performance which culminated in a meeting with his manager. During that meeting, the manager tried to persuade Mr Clements to take another role. Although the point was disputed, the Tribunal found that the manager told Mr Clements, “you’re not 25 anymore” in an attempt to persuade him to move. The Tribunal agreed that the comment was age discriminatory, although they noted that it had not been intended that way. Mr Clements formed the view that he would be replaced by a younger colleague, although the chosen replacement was ultimately of a similar age. He resigned and claimed constructive dismissal after his replacement was appointed.

The Tribunal found that Mr Clements’ employer had not gone about addressing Mr Clements’ performance shortcomings in a proper manner. The meeting at which an attempt was made to persuade Mr Clements to move was the start of a series of events that culminated in Mr Clements’ resignation. However, despite finding that the age discriminatory comments had been made, the Tribunal found that they did not materially influence Mr Clements’ constructive dismissal claim.

Employers should ensure they have up to date policies and procedures in place so that they can be confident that they are always acting within the legal guidelines to avoid any claims of discrimination being brought against them. At Royds, we have many years of experience in advising employers on all aspects of employment law, including discrimination. For more information, please contact our specialist Employment & HR team.

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