Are older workers being failed by discrimination laws?

We have seen a lot of disparities between younger and older people, particularly relating to working arrangements and the “digital age”, and the perception of older people during the national response to COVID-19. Evens references to “back in the days…” and “boomers” suggest that ageism has become deeply embedded. Recently, the Women and Equalities Committee (WEC) published a report, “The Rights of Older People”, which concluded that ageism is widespread and culturally embedded in the UK. It suggests that older people are being failed by discrimination law and the Public Sector Equality Duty (PSED) because their protections are inadequate and rarely enforced.

There are currently 11 million people in England and Wales aged 65 or older, where there are more people in older age groups in the UK than ever before and these proportions are expected to increase, particularly in light of the rising living costs and tax changes. This therefore affects a significant amount of the UK’s workforce.

Age as a protected characteristic under the Equality Act 2010

Older people are protected under the Equality Act 2010, however the Act treats age differently from the other eight protected characteristics, in that it allows direct discrimination based on age where it can be objectively justified as a “proportionate means of achieving a legitimate aim”. The WEC’s report has found that this therefore means that there is a view that this exceptional treatment of the protected characteristic of age contributes to a widely held perception that ageism is less serious and more socially acceptable than other forms of discrimination such as sexism, racism, and homophobia. In particular,  it is more likely that references made to older people as a group, in a way which would be totally unacceptable if they said it in terms of race, gender or sexual orientation, have become embedded and more openly accepted in a way that other forms of discrimination are not.

The Equality and Human Rights Commission’s (EHRC) last national survey of prejudice and discrimination found that a higher proportion (slightly over a quarter) of British adults of all ages reported experiencing prejudice based on their age than any other protected characteristic. This is indicative of the underlying challenges older workers may face when needing to rely on discrimination laws.

What are the WEC’s recommendations?

The WEC’s report recommends that the government should commission the EHRC to review the effectiveness of protections against age discrimination provided by the Equality Act 2010 and the PSED in England. In particular, it is proposed that, the EHRC should consider:

• The implications for older people’s rights, and enforceability of such rights, of allowing objective justification of direct age discrimination. The report notes that this exceptional treatment of the protected characteristic of age contributes to a widely held perception that ageism is less serious and more socially acceptable than other forms of discrimination.
• How the PSED in England effectively promotes progress on older people’s rights and whether more specific positive duties would drive progress.
• The case for a strengthened “reasonable steps” duty on employers to prevent age discrimination.
• Options to amend the Equality Act 2010 to better reflect the intersectional nature of age discrimination. This could include commencement of section 14 which would provide for combined discrimination on the basis of two protected characteristics.

How can this perception be de-bunked?

It may be that an overhaul to the discrimination principles applying to age discrimination is required, however there are some proactive steps organisations can take.

• Where there been evidence of ageist stereotyping, a cultural shift is required in the workplace to ensure an inclusive work environment for older people. A starting point is to ensure that an organisation’s diversity, equality and inclusion policy is updated to prioritise age diversity and training is communicated to the workforce.
• It is from such practices that could then result in attitudinal changes which would then foster a more inclusive working environment for older workers and challenge stereotypes.
• A lot of such stereotypes have arisen from the media and even though older age is not itself, a cause of digital exclusion, there are more challenges for older people with access to technology, particularly broadband and mobile phones at home. Employers should ensure that all of its workforce are trained on its equipment and new technologies and such changes in technology and AI are embraced by all of the workforce.

We await the Government’s responses to such recommendations by the WEC and will see if any of these proposed changes are implemented.

If you need support with updating your DEI policy or implementing this change within your organisation, please do not hesitate to contact a member of our employment team who will be happy to help.