Is age just a number?

Imagine you are a 55 year old man who has held a senior position as head of a division for over ten years. You are aware that the company is considering restructuring. You believe that you could be at risk of redundancy along with the other heads of division.

The next you know, you are called into a meeting, on the pretext of discussing new clients. Instead you are told you are to be made redundant. You are handed a letter confirming your redundancy, and told that you are not needed to work your notice. The work you have been doing is given to the other members of your team, and you leave the office for the last time.

You then learn that the person who has been kept on to run your division is over 20 years younger than you, and that she is now heading a team of similar aged employees. Pausing at that thought, you realise that you were one of the oldest employees at the company and are left with the distinct feeling that your face no longer fits. What would you do?

This may sound extreme, but it is an all too common scenario of a fifty-something senior manager being made redundant. This scenario faced one such employee and he brought a claim for unfair dismissal and age discrimination.

Age discrimination has been unlawful for the last year. Only now are we starting to see a real rise in the number of claims that are brought and judgments that are being delivered through the appeal courts. The message for employers such as this one is that claims are on the up.

In this case, the Tribunal found that the company had failed to follow any procedure – this made his dismissal for redundancy automatically unfair. The Tribunal then turned to look at whether he had been selected for redundancy because of his age. The answer was yes.

Various factors contributed to the downfall of the company. Of no help was a book that had been written by its owner called ‘How To Get Rich’. The book bestowed the virtues of employing younger people, stating that ‘it was unwise to leave senior employees in any job for too long’. Although the book had not been written by the manager who dismissed the redundant employee, the Tribunal concluded that it affected the culture within the company.

A single difference in age alone is unlikely to assist anybody in establishing a claim for age discrimination in the absence of other factors. However, in any discrimination case, a more general imbalance in numbers will often be taken into account. If ten women apply for a job along with one man, and the man is appointed, a Tribunal is likely to take the apparent discrepancy in statistics into account in relation to any claim for sex discrimination.

All of these factors led the Tribunal to conclude in this case that our employee had been dismissed because of his age. Employers should take note. Tribunals are increasingly aware of businesses that simply want to clear out the old. Anyone in this position should seek legal advice.

There is a ray of hope for employers who do need to redress the balance of a disproportionate workforce. Unlike other forms of direct discrimination, it is open for an employer to “justify” any direct form of age discrimination. However, any justification defence will stand up to very careful scrutiny by the Tribunal.

Published 20/11/2007. The author of this article is Susie Halliday