The ageism plague

2003

There is a demographic time bomb ticking under our economies, yet ageist stereotypes continue to blight the workplaces. These have led to a huge wastage of skills and loss to the economy as those aged between 45 and 65 are marginalised from the workforce.

As people get into their mid 40s, their labour market prospects rapidly decline in the face of both blatant and more subtle forms of discrimination. Many 50-year-old professionals know that hard work won't bring any more promotions. Vacancies get filled by a younger staff member before older workers even know about it. A new boss makes life so miserable for the 50-year-old secretary he inherits that she resigns.

In the UK, 14 per cent of UK workers feel they have been discriminated against because of their age – a figure which represents 3,878,000 people. And while legislation making it illegal to discriminate against people in the workplace on the grounds of age will be introduced in 2006, it is currently legal under UK law for employers to sack people on the grounds of their age.

What is your experience of ageism in the workplace – and what can, or should, be done to combat it?

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At present in the United Kingdom there is no statutory protection against age discrimination. The Government is required under European law to introduce age discrimination provisions by 2006. However, recent developments in caselaw may mean that age discrimination claims are allowed in 'through the back door' before then.

Employees may be able to bring a claim against their employer if they can show that the less favourable treatment that they have received on account of their age also had a disproportionate impact on them because of their gender. An example is where a job advert invites applicants between the ages of 20 and 30 but requires them to have at least 5 years’ experience. Such a requirement could be argued to have a disproportionate impact on women as more women than men in that age bracket have child caring responsibilities and are therefore unlikely to be able to demonstrate 5 years’ experience. Therefore the age limit in this example indirectly discriminates against women and may be unlawful under the Sex Discrimination Act 1975.

Under the Employment Rights Act 1996 employees over 65 are denied protection against unfair dismissal and are not entitled to receive a statutory redundancy payment if their employment terminates by reason of redundancy. Most contracts of employment contain a retirement age but, whilst historically employees have automatically ceased working at that retirement date, more employees are now wishing to continue working beyond 65.

In a recent case a male employee brought a claim against his employer following his forced retirement at the age of 65. He claimed that the statutory upper qualifying age limit had a disproportionate impact on men as more men than women worked past their retirement age. As such he argued that the provisions in the Employment Rights Act 1996 were unlawful. His argument was successful and the tribunal declared that he had been unfairly dismissed and awarded him compensation.

This decision has had a huge impact on retirement ages. Employers are no longer able to force their employees to stop working at retirement age for fear of an unfair dismissal claim, irrespective of what their contract of employment says about retirement.

The decision also causes practical difficulties in calculating redundancy payments for people over 65, as the legislation does not provide any means of calculation. Indeed, as currently drafted, an employee’s entitlement decreases gradually during their last year before retirement.

The Government are appealing against the decision but it is likely to be some time before the matter is finally resolved.

As a result, employers need to keep a close eye on this area of law and take particular care when dealing with issues regarding age. The area is complex and, at present, uncertain. Advice should therefore always be taken when dealing with the dismissal of older workers whether it be by reason of retirement or redundancy. The fact that we do not yet have legislation prohibiting age discrimination does not necessarily mean that employees will not have protection.

If you require further advice on this or on any other aspect of employment law please contact me at [email protected]

Nicola Brown

In Australia there is a firm that I work for which has created a program called 'Young Guns' aimed at enabling hot young prospects within the agency to bypass the hierarchy and to get their ideas into the melting pot of management decision making.

I have no problem with this, per se. However I would have preferred it if the management, in the true competitive market driven manner, had also set up and funded an 'Old Farts' program which enabled people over 45 to have a similar opportunity to by pass the hierarchy and to contribute their ideas to the management mill.

By facilitating open competition between the experience of those who have been in the work place for some time and those who are just starting out the organisation could have benefitted and the results might actually have demonstrated once and for all that simply turning 45 does not result in a diminution of brain functioning.

Garpet Canberra, Australia