All About Age: Discrimination And Benefits (Video)

In this All About Age webinar, our HR law experts will look at the issue of age discrimination and benefits, with a particular focus on:

The risks of introducing tapering or transitional arrangements when making pension scheme changes; these are often intended to cushion the blow of the changes but can risk age discrimination claims. This has been thrown into stark relief by the recent (December 2018) Court of Appeal decision which found that the Government's transitional pensions arrangements put in place to protect older Judges and Firefighters constituted unlawful age discrimination because of the impact on younger scheme members; How best to structure share schemes' good leaver/bad leaver provisions to minimise the risk of successful age discrimination claims; and A reminder on how insured benefits can be provided to employees in a way that doesn't fall foul of the age discrimination legislation. During the webinar, we will help you to identify the actions you need to take as an employer in light of recent case law decisions, issues to watch out for when pension scheme changes are made, top tips on getting it right when providing benefits and how to mitigate risk in this area for your business.

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Roughly one in four people born today can expect to live until they are 90. As well as living for longer, people are increasingly working longer. People over the age of 50 now make up a third of the UK workforce and well over a million people aged 65 and over are in the workforce. As a result, employers are having to navigate the legal issues around an older workforce and age discrimination.

In terms of general societal trends, the employment market has for a long time been operating with astonishingly low levels of unemployment. There was a record high in 2018 with 32.4 million people in employment equating in the lowest rate of unemployment since 1975.

With a greater demand for workers regardless of age, and a trend of reduced workers coming to work in the UK from the European Union, it would appear to be only a matter of time before the experience and skillsets of older workers can be truly harnessed.

Indeed in 2018, there was a record number of people aged 50 and older in employment. Age awareness charities have called for employers to ensure that working practices cater for the needs of older people.

Age discrimination claims can be brought by individuals of any age and because of this there is a need to ensure that practices do not discriminate against workers on age grounds more widely. Recent age discrimination cases continue to establish boundaries around acceptable and unacceptable employment practices in age discrimination terms.

Why is it important to consider age discrimination issues?

Age discrimination claims are expensive to litigate as a starting point - considerable time and costs can be spent in defending claims. Claims can also be brought in a range of situations - in relation to recruitment practices, throughout an employee's working life and through to their departure from the business.

They are likely to be unwanted from a PR and HR perspective. No employer wants to be a high profile example of discriminatory practices. Age discrimination claims can be very complicated and costly to untangle when changes are needed to deal with past practices.

General principles of age discrimination legislation in the UK

The Equality Act generally outlaws age discrimination amongst the other protective characteristics such as sex, race, disability discrimination and so on.

There are four main types of age discrimination: direct and indirect age discrimination as well as harassment and victimisation relating to age discrimination. This article will focus on direct and indirect age discrimination as they are much more common.

Direct discrimination can be the clearest type of discrimination to spot. It takes place where an individual, so an employee or a member, is treated less favourably because of their age or perceived age.

A good example is where an older person might not be shortlisted for a promotion because they are assumed to be of an age where they might not want that level of stress or responsibility or might not be adaptable enough or because an assumption is made that they might not want to work for many more years.

Similarly someone might also not be shortlisted for a job because they are considered to be too young and inexperienced so in all these cases assumptions or stereotypes are being made on their behalf which are based on their age and amount to less favourable treatment. The discrimination here means each of those two employees simply will not be given the opportunity to go for the promotion.

Indirect discrimination can often be harder to identify. This is where an employer's practice criterion provision, a PCP, applies in the same way across a group of employees but where the impact would put people of a certain age at a disadvantage when compared with the impact on others of a different age or age group.

A PCP can be anything from a policy, a practice, a treatment, a procedure, a requirement, a rule, an arrangement. We have recently found out in the Court of Appeal's decision in United First Partners Research v Carreras [United First Partners Research v Carreras [2018] EWCA Civ 323] is that even an expectation can amount to a PCP.

An example of indirect age discrimination would be a requirement that a job applicant has held a driving licence for a minimum period say, for example, for five years. This apparently neutral practice can apply across the board but impact more on younger job applicants, for example, 20 year olds because they would be unable to meet that requirement.

When is age discrimination lawful?

There are some specific situations where age discrimination is lawful. The Equality Act 2010 sets out a number of specific exemptions that allow employers to provide different treatment in employment on age grounds.

For example, there are limited circumstances where a genuine occupational requirement exists meaning that someone of a certain age can be chosen for a job, for example, hiring a girl to act a part in Annie.

In broad terms, it is possible for employers to offer different pay and benefits based on an employee's length of service. For example, additional holiday for longer serving employees. If differences in pay and benefits exist for employees with up to five years' service, this is covered by a specific exemption under the Equality Act 2010 and so it is not unlawful.

When more generous pay and benefits are offered by reference to periods of service of five years or more, the employer must be in a position to show that it fulfils a business need, for example rewarding loyalty.

There are also a number of specific pensions exceptions to the general principle that differences in treatment based on age are unlawful. This is because many pension benefits are formulated, calculated and paid when an employee reaches a certain age. There are certain ways in which pension schemes can continue to operate without constantly running the risk of age discrimination claims.

However, there are many practices which are not covered by the specific exemptions in the Equality Act 2010 and underlying regulations and, in these cases, employers will need to be able to objectively justify the treatment.

When is age discrimination not lawful?

Age discrimination is not...