Yolk Recruitment HR Insights - Age Discrimination 10 Years On
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Age discrimination claims make up around 7.5% of the 16,000 employment tribunal claims filed in the UK each year. The average award for age discrimination claims is £11,211. Case law over the past 10 years shows that rejecting candidates for being "overqualified" or lacking "passion and drive" can constitute direct or indirect age discrimination. Employers are also prohibited from setting age limits for benefits schemes or dismissing employees to avoid increased redundancy payments or pension entitlements at older ages. However, legitimate aims like cost-cutting can sometimes justify policies that indirectly discriminate based on age.
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Yolk Recruitment HR Insights - Age Discrimination 10 Years On
- 1. Age discrimination – where are we 10 years on? Anna Denton-Jones May 2015 navigating employment law
- 2. Minority claim • Around 16,000 ET claims per year • Around 1200 are age discrimination – 7.5% navigating employment law
- 3. Awards • Average award £11,211 June 2015 • Maximum award £28,428 • Median award £7,500 • Remember that will be a mixture of: – Injury to feelings – Compensation for financial losses navigating employment law
- 4. Example • “not a young man anymore”, “not getting any younger” and “you are as old as my Dad….admit you are worn out”, “let the young guys come in and take the strain” • Comments about level of “passion and drive” and “lack of energy” navigating employment law
- 5. Biggest change in 10 years • Removal of 65 NRA and duty to consider requests to stay in work beyond 65 navigating employment law
- 6. Health and Safety • Recent case where a bus crashed into a Coventry supermarket killing two passengers - the press attention focused on the age of the driver (77) and whether or not he was too old to be in charge of the bus. • Is there any actual evidence to back up that the older we get the less safe we are in the workplace? • A Health and Safety laboratory review (www.hse.gov.uk/research/rrhtm/rr832.htm) found that older people are not more prone to injury just by reason of their age. navigating employment law
- 7. Case law examples - recruitment • Rains v CRE 2006 • Claimant aged 50 applied for HR manager job • Rejected because “overqualified” • Argued requirement that “recent hands-on management experience” was indirectly discriminating against older workers who were more likely to have moved away from the coal-face to strategic roles • Split decision 2:1 – majority felt not work in this way, just that claimant didn’t have the qualifications for the job, minority felt it did age discriminate by putting older candidates at a disadvantage. navigating employment law
- 8. Recruitment continued • McCoy v James McGregor & Sons • “Youthful enthusiasm”, “drive’ and ‘motivation” • 58 year old with 30 years + experience • Direct discrimination navigating employment law
- 9. Indirect discrimination in adverts • Rainbow v Milton Keynes Council • teaching vacancy "would suit candidates in the first five years of their career” • Indirect age discrimination – disadvantaged the over 60s • Council argued cost – hadn’t put forward enough evidence to convince the Tribunal navigating employment law
- 10. Requirement to hold degree indirect discriminates against older workers • Homer v Chief Constable of West Yorks Police navigating employment law
- 11. Case law examples - redundancy • Lawrence Court v Dennis Publishing Limited 2007 • Candidates aged 21, 25, 26, 28 and 55 – 55 year old selected, managed by 31 year old • Claimant alleged direct age discrimination. • Inference that as all others in pool significantly younger age was the reason for the selection. • Burden of proof shifts to employer to show age not relevant – couldn’t. Witness evidence of culture of youth within business navigating employment law
- 12. Case law examples – direct discrimination – dismissal for being “too old” or “too young” • Wilkinson v Springwell Engineering Ltd • Perrin v Christophers and Sons Ltd navigating employment law
- 13. Case law examples – dismissals before become to expensive to employ or dismiss • Eg:- redundancy entitlements or pension entitlements • Contradictory cases • Donkor v Bank of Scotland navigating employment law
- 14. Age limits on schemes • Eg:- PHI cut off age set by insurer • Whitham v Capita Insurance Services Ltd • Smith v Gartner UK Limited navigating employment law
- 15. Post TUPE harmonisation of contracts • Braithwaite v HCL insurance • Was indirectly discriminatory against older workers • But was a proportionate means of achieving the employer's legitimate aim of reducing staff costs as there was no less discriminatory way of achieving that aim navigating employment law
- 16. Case law examples - harassment • Acheampong v National Car Parks Ltd • Osbourne v Ghondia navigating employment law
- 17. Flexible benefits • Swann v GHL insurance Services UK Limited • Flexible benefits package was not less favourable treatment on the grounds of age navigating employment law
- 18. Redundancy - criterion • LOS is discriminatory but it can be justified eg:- Rolls Royce case. While it constituted prima facie indirect discrimination, it was objectively justified. • The legitimate aims being pursued were twofold: the maintenance of a stable workforce during a redundancy exercise and rewarding loyalty. The means of achieving those aims were proportionate in that the criterion was one of many and was consistent with principles of fairness. navigating employment law
- 19. Hot spots • Employers wanting to enhance redundancy payments in a manner which doesn’t ‘fit’ under the regulations • Employers wanting to keep those who would be more expensive to make redundant • Lack of discussions with staff about their careers thus making ‘retirement’ difficult navigating employment law
- 20. Hot spots continued • Assuming that just because someone is a certain age that they will only want to work a few more years navigating employment law
- 21. Contact us: adenton@refreshinglawltd.co.uk Phone 02920 533393 or 077977 545480 www.refreshinglawltd.co.uk navigating employment law
Editor's Notes
- On 1st October it will be 10 years since the legislation introduced which makes me feel old! Anyone got any stories to tell about where age discrimination has come up in their workplace experiences in the last 10 years and how things have changed?
- Very much the poor relation – less frequent compared to other forms but: Newer so expect slow build up Early conciliation solving ¼ of disputes Settlement Agreement being used before people even get to Early Conciliation Redundancy used to mask it (in same way as we mask poor performers in a redundancy exercise) by placing cloak of legality around it – I certainly see cases where I think there is age discrimination at work in a redundancy scenario
- Context – trying to move into a part-time position from very senior role – can only describe bullying received as breaking this very experienced person who ended up leaving with a SA, on capability grounds for ill-health – didn’t want to pursue the claims – counsellor recommended having to let go and move on – would had a great claim I believe.
- Still see an awful lot of contracts which haven’t been updated to reflect no NRA any longer Impact: performance management – if you aren’t subjecting your 35 year old to the same processes – as soon as you start to single out the older worker with capability issues it starts to look like age discrimination – employers not great at having the right processes in place for this
- 10 years ago I lectured on the myths that existed around age and perceptions of decline and how studies showed they weren’t true but wanted to see what had been said recently…... There is some evidence older people may cope less well with shift work. A report in 2006 for the HSE R446 reports on a laboratory simulation of a 12 hour rotating shift pattern comparing the response of different age groups it is worth noting that neither group was particularly old. The average age of the younger group was 21 and the average age of the older group was 44 however even within these groups the performance of the older one varied more between day and night than in the younger group. It suggests that if older people do have to work shifts health and safety problems can be minimised by a rotating shift system or permanently working regular hours i.e. less chop and changing. Other HSE reports into performance find that perhaps contrary to popular belief, performance doesn’t decline with age at least up until the late 60s and that where older workers are more prone to injury this may arise from attitudes rather than actual infirmity. For example those who have been in the workforce for longer may become more complacent, underestimate hazards and be overconfident as regards risks compared to new workers who maybe more likely to flag up risks. (See HSE reports RR799 and RR156). Indeed there is some evidence from the US where a study looked into construction workers and found that actually older workers had fewer accidents but when they did have accidents they were more severe e.g. falls from ladders. Also perhaps contrary to popular beliefs around memory and mental acuteness evidence suggests that cognitive performance continues to improve until at least age 60 and levels off before declining from age 70 (RR832) researchers are keen to point out that even where there is a decline in working memory and processing speed in laboratory studies, in real life in the workplace people continue to develop strategies to overcome any deficits where they occur e.g. writing things down to remind themselves. When it comes to driving safely equally age is no predictor of driving performance the evidence suggests the over 65s have poorer visual acuity, contrast sensitivity, field of view and depth perception than those under 50 and their speed of decision making maybe slower but its more accurate the view is that older driving compensate for any cognitive or visual decline to greater experience, better route planning and more careful (slower driving). Overall it seems there is little evidence in the literature that chronological age is a good indicator of health, cognitive, physical abilities, sickness absence rates, work related injuries or productivity it would not be reasonable for an employer to say that someone can’t do a job unless they can demonstrate it firstly by highlighting what characteristics may have deteriorated with age and that they are critical to the job, secondly proving that there has been some deterioration in the specific individuals abilities and thirdly that reasonable adjustments are not possible. Further these studies suggest that employers perhaps ought to build into their risk assessments processes consideration of older workers as well as risk assessing for young workers, pregnant and new mothers. For example this might factor in things like the physical nature of any workload, hot cold and noisy environments, and shift working hazards but we need to be very careful not to make assumptions based purely on age most organisations can cite examples of people working well into their 70s and long may it continue.
- ET stated that if had agreed was discrimination – would NOT have found it to be justified. CRE argued concern in employing overqualified staff would be that they would underutilise their skills/not stay in the role – ET found these to be unfounded assumptions. In order to justify discrimination would have to demonstrate why the requirements they set for the post were necessary for the job/put forward tested evidence for their decisions – not such assumptions.
- M who was then aged 58, saw the advertisement and contacted one of the directors of McGregors, M detailed to Mr Dixon his working experience which he stated was over 30 years' duration and was with particular reference to the hardwood trade (experience in the hardwood trade being of particular relevance to the post). Mr Dixon then asked M how old he was. M confirmed that he was then aged 58. Mr Dixon then asked him if he "still ha[d] the drive and motivation to be successful in this trade?". In response Mr McCoy confirmed that he most definitely had drive and motivation and that he was very enthusiastic about the prospect of re-entering the timber sales business and in re-establishing contact with persons in that business whom he had met and known over the years. M subsequently attended interview. No documentation was provided to him in connection with the vacancy and he was not asked to produce a CV. During the interview Mr Dixon again raised the subject of M’sage and queried his drive and motivation. Magain responded that he was very enthusiastic about the job. He felt that the interview went well and was positive about his chances of success. A further interview took place a few days later with Mr Dixon and a Mr Aiken,. M stated to Mr Aiken that he remembered both Mr Aiken’s grandfather and father during their time in Aikens. Mr Aiken stated that that had been some time ago (apparently both had been deceased a number of years). Mr Dixon again made several references to M's age during this interview and again asked him to convince him and Mr Aiken that he had "the drive and motivation for this job and that you are hungry enough to succeed?". In response, in an endeavour to answer in a clear and demonstrative fashion, M placed his hand on the desk and stated that he was very anxious to secure the position and he could not wait to get "back on the road". He also stated that he had the knowledge and the experience in the trade and that he had no doubt that he would enjoy great success and would be a great asset to the company. Some few days afterwards, M received a letter advising him that he had been unsuccessful in the application. M requested feedback and was subsequently informed that in his initial interview he had exhibited extensive knowledge and experience in the timber business but that, at the second interview stage, the other candidates had met Mr Aiken’s specifications with regard to motivation and drive more closely than he had. 3 applicants had been interviewed for two posts. The others shortlisted were aged 43 and 42. None of the applicants were provided with written job descriptions or person specifications but McGregors did however use an "interview rating sheet" designed to score six characteristics to be tested at interview. The six categories were (1) "appearance/disposition", (2) "education/qualifications/training", (3) "skills/knowledge", (4) "experience", (5) "personality" and (6) "special circumstances". Mr McCoy made a complaint of age discrimination, citing the other two short-listed (and successful) applicants as comparators. The NI tribunal found that McGregors had directly discriminated against M on the grounds of his age. Took into account: The use of the particular term, "youthful enthusiasm" in the job advertisement. When set alongside certain other evidence in the case the tribunal regarded it as legitimate to consider the drawing of an inference from this wording (see Equality Authority v Ryanair). The tribunal was not asked to consider whether the advertisement was itself capable of amounting to an "arrangement". The questions asked by Mr Dixon in the interviews. There was a clear linkage made in Mr Dixon’s mind at the time of the interviews between the concepts of "age" and "energy", "enthusiasm" and "motivation", hence the usage of "youthful enthusiasm" in the advertisement ("youth" being synonymous with "enthusiasm"). Any age-related question potentially may carry with it an inference that the employer has taken into account the age of the applicant for employment in a way that is possibly unlawfully discriminatory. Certain manifest inconsistencies in the interview scoring, which was, in general terms, characterised by a lack of transparency and by obscurity. Comments made on the forms again displayed an express linkage between Mr's age and the notion of energy, motivation and enthusiasm, specifically the written comment recorded by Mr Dixon relating to the first interview, "Age 59 - health good - question of motivation" (described as the smoking gun by Ms representative). McGregors' evidence was at times inconsistent, lacking in specificity and generally not as credible as Mr M's. No credible explanations were provided in response to several allegations. At its most basic level, the comments noted by Mr Dixon in respect of the three applicants concerned did not demonstrate to the tribunal in any clear sense why the other two candidates had been successful and why Mr McCoy had failed to be selected despite his considerable experience. It appeared that both directors had made the assumption = approached the selection process with the notion that M would be potentially less of an asset to McGregors than his younger co-interviewees. Thus he was asked age-related questions and queries were raised with him regarding such matters as his drive and motivation at the age of 58. These particular tests and queries, on the evidence (which was not contradicted) were not applied to the other applicants. In summary, the tribunal therefore held that Mr had established sufficient facts to show that the advertisement and interview process and the failure to select him for one of the two sales posts constituted less favourable treatment under regulation 3 of the 2006 Age Regulations in comparison to the other two successful candidates. The "protected class" was a person of M's age and the two comparators were properly comparable, but of a different age. The burden of proof having shifted to McGregors, they failed to provide any credible explanation or evidence to show that this less favourable treatment had occurred for a non-discriminatory reason. Therefore, the tribunal concluded that but for his age, M would more probably than not have been selected for one of the two posts.
- a tribunal found that an advert stating that a teaching vacancy "would suit candidates in the first five years of their career" constituted indirect age discrimination. Someone in Ms Rainbow's age group (over 60) was likely to have more than five years' teaching experience and would therefore be at a disadvantage. The reason why the council advertised in this way was that they were looking to appoint a teacher who was less costly than someone with more than five years' experience. The tribunal held that, in the absence of evidence that, as a result of financial pressures, the council was compelled to take discriminatory action, a justification defence could not be established.Nevertheless, the tribunal stated that "in age discrimination there is no automatic bar on economic grounds coming into the equation on justification, certainly where combined with other reasons". This was in accordance with the rule in Cross v British Airways plc [2005] IRLR 423 (EAT) that cost alone cannot amount to objective justification.
- In Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, the Supreme Court held that a requirement to possess a law degree to move into the band at the top of an employer's career structure had put Mr Homer at a disadvantage on grounds of age. The Supreme Court rejected the idea that it was possible to separate age from the fact of retirement and held that it was not appropriate to compare Mr Homer to those who would not be able to complete a degree through leaving work voluntarily so as to prevent them obtaining a degree. The case was remitted to an employment tribunal on justification.
- In an employer dismissed a recently-recruited employee, aged 18, ostensibly on grounds of capability. The tribunal found that the employer had made stereotypical assumptions about her ability based on her age that were not borne out by the evidence of her work. No arguments as to justification were put forward, and the tribunal therefore found that the employer had directly discriminated on grounds of age. The tribunal went on to award the employee loss of earnings up to the tribunal hearing and future losses of 26 weeks, together with an award for £5,000 for injury to feelings. The tribunal also applied an uplift to the compensation on the basis that the employer had failed to follow any procedure before dismissing her. Miss Wilkinson started working for Springwell Engineering Company Limited (Springwell) as an office administrator on 3 January 2007. She had been introduced to the company by her aunt who had been undertaking the role previously and who overlapped with her for a short period to give her some basic instruction in the new role. She was subsequently placed on a three-month probationary period. In February 2007 Miss Wilkinson was advised that she was only doing 90% of her role and asked to improve her work rate over the next few months. Around the same time Springwell asked the administrator from another office, Mrs Spence, to cover some of the work they would otherwise have expected Miss Wilkinson to perform. Mrs Spence was older than Miss Wilkinson. On 16 March 2007 a conversation took place between Miss Wilkinson and Mr Wallace, her line manager, in which, Miss Wilkinson alleged, she was informed that her employment was being terminated on the grounds that she was too young for the job. She was required to leave the premises immediately and was not informed of her right to appeal the decision. She was 18 years old at the time of her dismissal. Perrin v Christophers and Sons Ltd and another Mrs Perrin, aged 63, was made redundant from her role as a receptionist in an undertakers. Her employer claimed that her role was redundant, on the basis that a new role had been created with additional responsibilities for which she was not suited. A tribunal disagreed, finding that the new role was not substantially different from Mrs Perrin's old role and that Mr Christoper had said he intended to replace Mrs Perrin with "a young, fit blonde". Theme in these cases often smaller employers quite free in their views haven’t tried to cover up their prejudices – got them into hot water. You may work in a larger organisation and think you can protect it but we’ve all worked with someone who does this right?
- London Borough of Tower Hamlets v Wooster UKEAT/0441/08, a redundancy situation arose as a result of the restructuring of the council's housing department and the transfer of housing stock to social landlords. Mr Wooster's role with the council was "deleted" in 2001 and he was given a temporary post, working on secondment with East End Homes (one of the social landlords) with the intention that he would be found another permanent role with the council in due course. However, no permanent role was found, and Mr Wooster was eventually issued with notice of redundancy in November 2006. East End Homes still had work for him and offered to fund 100% of his salary in order to keep him on until July 2007. This would have taken Mr Wooster past his 50th birthday, entitling him to retire with a lump sum and take his pension under the council's pension scheme. The council was keen to avoid this liability and declined the offer from East End Homes, stating in an e-mail that "if you are going to pay his salary then you can pay his bloody pension when he is 50". The EAT upheld the tribunal's decision that Mr Wooster had been directly discriminated against on grounds of his age. The tribunal had been entitled to draw the inference that the employer's failure to redeploy him, or extend his employment by further seconding him, was motivated by a desire to terminate his employment before he reached 50. Mr Wooster had been treated less favourably than a hypothetical comparator who was not aged 49. The council offered no arguments on justification By way of contrast, in Woodcock v Cumbria Primary Care Trust [2012] IRLR 491 the Court of Appeal upheld an employment tribunal's decision that a redundant chief executive, dismissed without proper consultation so that notice expired before he qualified for enhanced pension payments, had not suffered unlawful age discrimination because the treatment was justified. The court held that the Trust's aim had been to give effect to its genuine decision to terminate Mr Woodcock's employment by reason of redundancy and agreed with the EAT that the dismissal of an employee on such grounds was a legitimate aim. It was also a legitimate part of that aim for the Trust to ensure that, in dismissing Mr Woodcock it also saved the additional element of costs that, had it not timed the dismissal as it did, it would be likely to have incurred. The Trust had already kept Mr Woodcock on longer than it needed to have done, and he had "no right, entitlement or expectation" of staying long enough to earn the enhanced pension. The enhanced pension rights would have been a windfall, which the Trust could legitimately seek to prevent. The EAT's decision in this case was regarded as a surprise by many, who were expecting the tribunal's decision to be reversed on the basis that the Trust's decision had been based solely on cost. However, the EAT and now the Court of Appeal took the view that avoiding giving the employee an undeserved windfall was, in the circumstances, more than merely an exercise in cost saving. It is however hard not to agree with Mr Woodcock's submission that in giving the dismissal notice as and when it did, the Trust was concerned solely with the costs that it would incur if he reached his 50th birthday in its employment. It is understood that the Court of Appeal refused permission for Mr Woodcock to appeal to the Supreme Court. Donkor v Royal Bank of Scotland [2015] UKEAT/0162/15 an employee aged over 50 complained that two younger colleagues had been given the option of voluntary redundancy during a restructuring, whereas he had not. The employer argued that the reason was cost, not age; the costs associated with allowing him to take voluntary redundancy were much higher because of the enhanced early retirement benefits available under the pension scheme for those over 50. Because extra cost was a direct result of age, the EAT held this amounted to less favourable treatment because of age. The claim was remitted to the tribunal to decide whether it was justified
- Whitham v Capita Insurance Services Ltd ET/2505448/12 an employment tribunal held that by stopping Mr Whitham's PHI payments when he reached the age of 55, his employer directly discriminated against him. The employer's stated legitimate aim of admitting as many employees as possible to the PHI scheme was not accepted by the tribunal. The employer had not taken any steps to recruit employees directly on to the scheme, and stopping Mr Whitham's PHI payments was not an appropriate and necessary means of achieving that aim. The tribunal also held that the employer had ceased making payments because the insurer had refused to indemnify it for continuing payments until Mr Whitham reached 65, and therefore it had made its decision purely on cost which could not be proportionate. For these reasons, the employer could not objectively justify the discrimination. Further, the tribunal held that not transferring Mr Whitham to a different PHI scheme, which would have continued to pay benefits until age 65, because he was not eligible under that scheme as not "actively in work" at the relevant time, was indirect age discrimination. The tribunal considered it "obvious" that a PCP of not allowing employees access to a more favourable PHI scheme unless they were actively at work put employees aged 45 and above at a particular disadvantage, as they were more likely to suffer from ill health. In contrast, the EAT in Smith v Gartner UK Ltd UKEAT/0279/15 upheld a tribunal's decision to strike out an employee's direct age discrimination claim when payments under her PHI stopped at age 60 and she was not eligible to claim under the employer's new PHI scheme which provided cover to age 65 as she was not actively in work. However, as the case was not fully argued before the tribunal, who dealt with the strike-out application on written submissions only, the decision should be viewed with some caution.
- Mrs Braithwaite and others (the appellants) became employees of HCL Insurance BPO Services Limited (HCL) following a TUPE transfer. As a result, there was a disparity between the terms and conditions of employment of the appellants and HCL's existing employees. When HCL suffered financial losses it sought to harmonise all employees' terms and conditions to reduce its staffing costs, which had reached 115% of revenue. To harmonise the terms, HCL proposed to remove the appellants' right to a number of benefits (including private health insurance, carer days and enhanced redundancy payments), increase their working hours and reduce their annual leave entitlement. The changes put the appellants at a particular disadvantage as they, as older workers, had built up greater entitlements by virtue of their longer service. During negotiations, the appellants proposed alternative measures, including phasing in or reducing the changes, securing extra funding from HCL's parent company and seeking voluntary redundancies. HCL rejected the proposed alternatives and required all employees to sign up to the new terms and conditions or be dismissed. The appellants refused and were dismissed. The appellants brought claims for, amongst other things, age discrimination on the grounds that the requirement to sign up to new terms and conditions was a PCP that was indirectly discriminatory on the grounds of age within the meaning of section 19 of the EqA 2010. The tribunal found that the requirement to sign up to new terms and conditions was a PCP that put older workers, including the appellants, at a particular disadvantage. However, it was not indirectly discriminatory because it could be objectively justified as a proportionate means of achieving HCL's legitimate aim of reducing staffing costs to ensure its future viability and putting in place market-competitive, non-discriminatory terms and conditions of employment. Although there was a PCP that put older workers, including the appellants, at a particular disadvantage, in the EAT's view it was not indirectly discriminatory because it was a proportionate means of achieving a legitimate aim. HCL's aim to "reduce staff costs to ensure its future viability and to have in place market-competitive, non-discriminatory terms and conditions" was a legitimate one. The PCP was reasonably necessary because there were no less discriminatory means that achieved HCL's aim. The tribunal was entitled to conclude that the alternatives proposed by the appellants would not achieve HCL's aim. Taking these in turn, phasing in or reducing the changes would have maintained the contingent costs that HCL was seeking to reduce. Securing extra funding from HCL's parent company, which had already underwritten HCL's losses in excess of £10 million, would not reduce the staff costs themselves. Seeking voluntary redundancies would not help because HCL did not need fewer employees, it needed to reduce the unit cost per employee. Furthermore, the tribunal did perform a balancing exercise, assessing the effect of the changes upon the affected employees against HCL's needs. It was not significant that the tribunal had not referenced it explicitly, it was clear from the judgment as a whole that the tribunal had applied itself correctly.
- Acheampong v National Car Parks Ltd a tribunal found that harassment had occurred at the "mild" end of the spectrum where a manager had suggested that age might affect the 42-year-old employee's ability to carry out certain duties. In particular, the manager suggested that age might prevent the employee from working night shifts and cashing up (for which the ability to fight off any attackers would be useful), having earlier hinted that the employee's life was over with the comment "life begins at 40, what do you say about that?". The employee was awarded £2,000 for injury to feelings. Osborne and another v Gondhia the claimants were two sisters aged 21 and 18 who worked at a service station. They made a number of complaints about the way they were treated by their employers, Mr & Mrs Ghondhia, in particular in relation to unduly harsh criticism to which they were subjected, both to their faces and indirectly through remarks the employers made to other people. For example, on one occasion they were harshly criticised when it was clear that another (older) employee was at fault but was not criticised. On another occasion Mr Ghondia shouted aggressively at the older claimant over a trivial matter in a manner the tribunal described as "disproportionate" and "quite inexplicable". The tribunal found that Mr Ghondia viewed the claimants as an "easier target" for his anger because they were young women. The younger claimant on occasions was made to pick up Mr Gondhia's empty beer cans that he discarded on the floor. The tribunal commented that the claimants were "not treated with the respect they deserved as employees" and that the basis for that treatment was their age and gender, because the employers would not have subjected a man or a more mature woman to the same treatment. They "reasonably found the environment degrading and humiliating" and the tribunal upheld their allegations of harassment and direct discrimination (see paragraph 15 of the tribunal's judgment for more detailed findings). Shows works to protect all age groups.
- Swann v GHL Insurance Services UK Lt, a tribunal held, by a majority, that the provision of a fund to staff with which to purchase items from a flexible benefits package was not capable of amounting to less favourable treatment on the grounds of age. This was notwithstanding the fact that the benefits scheme provided an option to join a private health insurance scheme whose premiums were calculated according to age and gender. By contrast, the minority member of the tribunal found that the entire flexible benefits package was tainted with discrimination as a result of the inclusion of the age-related element. The majority went on to hold that, even if the offer of the benefits package had amounted to discrimination on the grounds of age, the employer had made out the justification defence. It had made all reasonable efforts to offer its employees a flexible benefits package that was the most advantageous possible and, on the balance of probabilities, the package would have the desired beneficial effect on recruitment and retention. The tribunal considered the employer's genuine and fairly-held intentions more important than whether the legitimate aim in question was actually achieved. The taking of professional advice and the reliance on that advice was considered an important factor in relation to justification, as was a staff survey which provided evidence on which the employer could rely when seeking to justify its actions. Do still see benefit schemes in contracts eg:- accrual sick pay on hols over longer than 5 year period – would have to obj justify – lack of case law.
- You need to be careful and think through what your legitimate aims are before using it – ask yourself is there a less discriminatory means of achieving the same thing?
- Recent example – employer wanted to pay more ERP to long serving employee than more recent employees – can only do so if follow the statutory rules Disapplying (or increasing) the statutory cap on a week's pay; Multiplying the amount allowed for each year of service by a factor of more than one; and/or Multiplying the overall amount by a factor of more than one. (Paragraph 13, Schedule 9, EqA 2010.) An employer can also make a redundancy payment using the above formula to an employee with less than two years' continuous service (paragraph 13(3)).