The Discrimination We Often Forget

Recent headlines have described how the Prime Minister wants older workers to go back to work. The labour market participation rate (the number of people who actually work compared to those who could) is low in the UK compared to other countries. This impacts the ability of the economy to grow as job vacancies remain unfilled. Getting older workers to return, even on a part-time basis, is a move in the right direction.

Some progress is being made.

‘The proportion of people over 50 in the UK workforce has started to increase and continues to grow.’ (HR Grapevine May 2023).

  • There’s the cost-of-living crisis forcing many older workers to put off retirement and return to work.
  • People are living longer – and, with poor investment returns, many are nervous about their financial needs during retirement and whether they have sufficient in their pension pots.

Although companies embrace the concept of employing older workers in their mission statements and external communications, the reality, and the way older workers are treated in the workplace, are often different. As one journalist put it, ‘ageism is everywhere – unless you are applying to be President of the United States.’ (Financial Times 15 January 2023).

In 2010 a study was published which tested the awareness that a group of managers had about protected characteristics and their understanding of the Equalities Act 2010. When asked to name the different kinds of discrimination, age discrimination came low on the list of the discriminations that were mentioned.

This is surprising given the extent of the problem.

  • In 2018, research by the World Health Organisation showed that it is much harder for a person over 50 to get a job than a younger candidate. Older people receive fewer responses to job applications and fewer invitations to interviews.

Companies need to beware.

  • They need to take time to review their hiring and HR policies and practices. Not only is there a fairness issue here but a practical one as well. Fact is, the number of age discrimination cases going to court and tribunal has seen a sharp increase – and the costs to companies can be high.

A couple of examples:

  • ‘HR Grapevine’ (2 May 2023) describes a recent case (Jones v Tango Networks UK Limited) where an employee was awarded over £70k following an age discrimination hearing.
    • They report that Mr. Jones raised a grievance after he had received criticism in a performance appraisal. Mr. Jones contended that the underlying cause of the issue was not his performance, but his age (Mr. Jones is late 50s). Initially the grievance was unsuccessful. However, the tribunal judged that proper process had not been followed and gave judgement for the employee.

Another case involved an employee of the Ministry of Defence and was reported in the ‘Financial Times.’ (15th January 2023)

  • A 62 year ole manager fell out with his boss and requested a meeting with HR. During the meeting, the HR manager asked the employee when he was going to retire.
  • The manager brought a case against the Ministry of Defence on the grounds that the question was discriminatory and he was successful.
    • In his summing up, the judge said that the question was ageist, unless the employee had raised the issue himself. He hadn’t.
    • The judge also said that the test for age discrimination is ‘would a 30-year-old in the company be asked the same question – or be treated in the same way?

He also said that asking this question was the equivalent of asking a young lady employee ‘when are you going to get pregnant?’

There is no doubt that people over 50 feel they are at a major disadvantage when applying for a job. This is notwithstanding that research regularly shows that older workers,

  • have a greater loyalty to their employer,
  • are off sick leas and
  • stay in their job longer.

In addition, the reputation of companies who employ older workers can only be enriched.

Some older workers turn a ‘blind eye’ to the day-to-day discrimination they witness – saying ‘it’s the way things are’ or ‘it’s not worth the bother taking things further.’

But there’s no doubt age discrimination is a problem that is much more widespread than reported. A recent study by the University of Sheffield concluded that ‘anti age discrimination policies are failing in the workplace and are not being implemented as intended. Change is urgently needed that acknowledges the age inequalities that exist in the workplace.’

As we say, companies would be well advised to examine their own practices in this area. For example,

  • Do line managers receive training to increase their knowledge and confidence so they can proactively support older workers?
  • Does the company have a robust, documented and consistent selection process?
    • Are all candidates put through the same process?
    • Are the staff involved in hiring trained in the selection process?
    • Are selection processes implemented it in a consistent fashion?
    • Are there pre agreed questions that are asked of all candidates that test their skills and experience for the vacant role?
    • Is there documentation to back up decisions (interview notes, for example?)
  • Has the company considered increasing flexible working to meet the needs of older workers?

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