Age Discrimination

Age discrimination became unlawful just over two years ago. By March last year, there had been 972 claims made to employment tribunals and, if our experience is anything to go by, that number will now be a lot higher.

It is important that employers understand what claimants need to establish to succeed with an age, or indeed any, discrimination claim.

Unlike the criminal law where proof beyond all reasonable doubt is needed, claimants only need to establish evidence that looks as if age was the reason for the bad treatment. The onus is then on the employer to prove that there was a non-discriminatory reason.

Let’s look at a recent case. A 55 year old man, I’ll call him O, was made redundant without any warning or consultation when a company reorganised. In carrying out its reorganisation, the company took on a new employee who was 33; let’s call him Y.

Evidence that indicated that age was part of the decision to get rid of O included the fact that the owner of the company had written a book in which he had written “by the time talent is in its late forties or early fifties, it will have become very, very expensive.” Secondly, all the employees who had been retained were all at least 20 years younger than O. Y, who had been recruited to head the new team was 22 years younger than O. Finally, the notes of the manager who heard O’s appeal referred to correcting the assumption that age was the “only” factor in O’s dismissal which implied that age had indeed been a factor.

The employer was then required to give evidence that there was another reason apart from the age of O that was the real reason for his dismissal. They could not do so and lost.
There is a very clear lesson for employers sacking talented people just because they have grey hair and replacing them with bright young things; it is potentially unlawful and expensive. 

For more information and advice, contact Jon Loney

Published 28/02/2008. The author of this article is Jon Loney