Despite being unlawful since 2006, age discrimination in the workplace is a fact of life.
The Equality Act outlaws both direct and indirect discrimination against employees and job applicants. Direct discrimination is as it sounds: treating someone less favourably because of their age. Indirect discrimination is applying a rule to everyone that adversely impacts a particular age group.
Nevertheless, there is no doubt that older workers find it difficult to find a job: one third of people aged 50-64 are out of work. Frighteningly, if you become unemployed in your 50s and remain so for a year, you are more likely to die or start drawing your pension than get another job. Research found direct age discrimination in job searches, with identical CVs giving an age of 25 getting twice as many responses to those quoting an age of 51.
The difficulty for job applicants is proving that age, rather than any other differences between candidates, is the reason for recruiting the younger worker. Often, the job applicant will simply not know the age of the person recruited let alone have enough detail about their experience and qualifications to know whether they were genuinely more suited to the job.
Unlike other forms of discrimination, treating someone less favourably because of their age is lawful if it can be justified. This way, employers can impose compulsory retirement or other apparently discriminatory policies if they can demonstrate that they are “proportionate” to a “legitimate aim”. This can make age discrimination claims more difficult to bring as Claimants face a further hurdle in fighting their employer’s attempts at justification even if they can prove that they were treated less favourably because of their age. John McCririck lost his age discrimination claim because the Tribunal found that Channel 4 had a legitimate aim of attracting a wider audience to horseracing and “his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience”.
Nevertheless, there have been some high profile successes, including that of Countryfile presenter Miriam O’Reilly. O’Reilly won her claim for age discrimination after she was one of 4 female presenters over 40 dropped from BBC1’s rural affairs show. The BBC attempted to justify their decision with a wish to attract a prime time audience and younger viewers but the Tribunal found that they failed to establish that using younger presenters was required to achieve this aim.
The case hasn’t however stopped the phenomenon of older women in the media being dropped for younger counterparts with line-up changes at Loose Women seeing Jane McDonald, Carol McGiffin and Denise Welch leaving in favour of Myleene Klass, Rochelle Humes, Angela Griffin, Jamelia and Denise Van Outen.
Age discrimination is not limited to the media
Sadly, age discrimination isn’t restricted to the media. Older workers often find that younger managers’ stereotypes about their flexibility, IT skills and capabilities result in them being sidelined, subject to performance procedures or even made redundant after a restructure. Older workers return from a short period of sickness to find their manager implements a capability procedure when younger workers are not, in the mistaken belief they are likely to be out for some time.
Age discrimination is rarely overt but it is often transparent. Older workers with unblemished long service suddenly subjected to capability procedures would be wise to question whether their age has resulted in unjustified concerns about performance.
So what can you do about it? The key is to gather as much evidence of discrimination as possible. Get something in writing as soon as possible: send an email setting out the problem. If your employer has a HR department, get in touch with them as well as speaking to your line manager. If things aren’t resolved internally, get legal advice as soon as possible.
Louise Taft is a Senior Solicitor at Prolegal (www.prolegal.co.uk)