Age Discrimination in the Workplace – too old to work?

The US Democratic Party have chosen Kamala Harris as their nominee for the 2024 presidential election, following incumbent president Joe Biden’s choice not to run again.  This decision was, it appears, largely based on the view amongst the party and voters that Mr Biden was too old to continue in the role and could no longer perform its requirements effectively.  As the UK population ages, this is likely to become a live issue for many employers and employees in the workplace.

Age Discrimination and disputes relating to it can arise in a variety of situations.  Employers will have a legitimate need to be able to remove employees who no longer have the capacity, owing to age related factors, to carry out their current roles.  They may also want to prioritise a younger employee for future planning and development, over an older one who may believe they are better qualified for the role at that time.  Age and age-related factors may also crop up  in the selection of employees in redundancy situations.

However, employees are protected from both direct and indirect age discrimination in the workplace under the Equality Act 2010, subject to certain caveats, so it is an area that requires careful attention and, potentially, legal advice.  Any decision based on age will be discrimination, so must be justifiable as a proportionate means of achieving a legitimate aim.

Redundancy

Age, and factors which are heavily affected by age, are frequently the subject of disputes in redundancy situations.  Age itself is unlikely to be an appropriate factor against which to score employees who are at risk of redundancy, as to do so would be an act of direct age discrimination which would need a justification.  However, there are other factors which are heavily influenced by age, but which an employer may not be able to  justify.

Take, for example, employees in a technical role who are pooled together for redundancy.  The employer will need to carefully consider the metrics against which these employees’ qualifications should be judged.  Certain recently-implemented qualifications could be an industry standard now, but an older employee may not have them, or have obtained an equivalent earlier in their career.  Assessing against the modern qualifications could be an act of indirect age discrimination against older employees, just as ignoring new non-traditional routes into qualifications would discriminate against younger employees.  Both of these would need justification, but could be avoided if the scoring mechanism is designed appropriately.

Similarly, a basic scoring of experience in the field will indirectly discriminate against younger employees. Experience, while often a close proxy for ability in a role, is not a perfect metric and will need to be justified. Employees are entitled to ask for an explanation for the scoring metrics, so employers will need to have considered this.

Capability

The example of the Democratic Party and Mr Biden is not a good one in the context of UK equality law. Employers and other organisations may well have concerns about the health of an employee, or their fitness to continue in a role, but there is a clear process to follow in these circumstances.  If an employee is aging and their employer believes this is affecting their work, the employer must manage this through a normal capability process and mustn’t place pressure on them to consider retirement, which is no longer mandatory.

In Hutchinson v Asda Stores Ltd, a 73-year-old employee who was beginning to show signs of dementia was repeatedly asked whether she would consider retirement. This was found to be harassment on the basis of age and could have been so if the employer had asked her just one more time after she refused the initial suggestion of retirement.

If an employee appears no longer to be fit to continue their role, they may be affected by a condition which meets the definition of a disability under the Equality Act 2010. In which case, the appropriate course of action is for the employer to seek medical advice and consider what reasonable adjustments are available, if any, to allow the employee to continue working.  If the necessary adjustments are not reasonable for the employer to implement, there is a fair process by which an employer can dismiss the employee sensitively, without risking harassing the employee.

Forced retirement

This topic has been in the news recently, relating to the election of the new global chief executive of Big 4 accounting firm EY.  This role, equivalent to a CEO, runs on four-year elected terms.  The firm usually requires its partners to retire at 60, but one applicant for this role was 57.  This candidate is said to have warned the other partners choosing the next leader that they risked breaching the Equality Act 2010 if his age was a factor without there being a legitimate business aim behind it.

Mandatory retirement ages and other decisions based on age are acts of direct discrimination, but organisations can justify such actions if they are a proportionate means of achieving a legitimate business aim.  The EY situation would not have been immediately comparable to many employer/employee situations, as the firm’s partnership agreement would play a large part in any Tribunal judgment.  However, this topic has been litigated in a more applicable context for other employers looking at succession planning– that of academics at Oxford University.

The University operates a programme known as the “Employer Justified Retirement Age” (EJRA), where academics are required to retire before they turn a certain age (currently 70).  Academics at the University have brought a series of claims contesting the EJRA.  These have had varying outcomes across the Employment Tribunal and the Employment Appeal Tribunal as the University has adjusted the policy and as a result of the differing facts involved.

The most common justification for mandatory retirement, shared by EY and Oxford University, is that the policy allows for the progression of younger members of staff and increases diversity.  However, in Field-Johnson and others v Oxford University, the Employment Tribunal found that in the case of Oxford’s policy, the EJRA created fewer than 10% of the vacancies at the relevant grade of professor, which was a significant factor in the Tribunal finding against the University.

The University has maintained the policy but keeps it under close review.  In the period since its original implementation in 2011, the age of mandatory retirement has increased and the scope of roles it applies to has also been limited.

The message from these cases is that in order to apply a mandatory retirement age, an organisation will need to be able to demonstrate that it:

1. Has a legitimate business aim that it is trying to achieve;
2. has considered all alternatives;
3. has found that there is no viable alternative; and
4. that the discriminatory policy is itself an effective means of achieving that aim.

The Oxford University cases show that even what appears to be a thorough and well documented policy may not be deemed to be justifiable by an Employment Tribunal, and that employees may have valid claims for age discrimination.  Employers who wish to implement a similar policy should take legal advice and will need to take care that there truly are no alternative options available.

Summary and Implications

The issue of age discrimination is complex, particularly as it intersects with employment law and organizational policies. The example of the US Democratic Party’s decision regarding Joe Biden highlights the broader societal challenges related to aging populations and workforce management. Employees are well protected against age discrimination, so employers must ensure that any decisions based on age are justifiable and proportionate to legitimate business aims, as mandated by the Equality Act 2010.

Redundancy and capability processes must be handled with sensitivity and fairness, avoiding direct or indirect discrimination. The cases involving Oxford University and EY illustrate the difficulties in justifying mandatory retirement policies, emphasizing the need for thorough documentation and consideration of alternatives.

Ultimately, the goal should be to create an inclusive work environment that values the contributions of employees of all ages, while also addressing legitimate business needs in a fair and equitable manner.

Please get in touch with our employment team if you have any questions or need advice on this or any other topic.