Watching out for Age Discrimination

One of the challenges employers are facing with so many generations in the workplace these days is the ability to allow younger people to move up through the organisation when older generations may be firmly in place and not going anywhere.  This has recently caused a big problem for Oxford University where a professor who was forced to retire at 69, won his age discrimination complaint, and this has been followed by a second case involving a senior banker with 26 years’ service at the Citibank.  

In this case, the employee had been made redundant from his role as Managing Director of the Bank’s Energy and Natural Resources Division for Europe, the Middle East and Africa, at the young age of 55.  He claimed that the culture was one in which you were expected to move on mid to late fifties, to enable younger senior managers to step up.  He had been told he was “old and set in his ways”.

In this particular case, the redundancy involved two posts being merged into one.  The other person in the pool was 51 and the employee complaining argued that the decision to appoint the younger colleague had already been made.  Whilst the manager denied making the comment about age, the Tribunal found the employee’s evidence more convincing, especially as he had immediately emailed after the meeting referring to the fact that his being passed over for the role would have nothing to do with skills or experience, but rather his age.

The Tribunal found that the younger candidate was chosen for the role before the job description had been drawn up, and that the decision had been made before the consultation opened.  They found that the managers weren’t interested in retaining him by finding suitable alternative employment and that his responses to the consultation weren’t addressed in an open-minded way.  They found that the complaints of age discrimination were taken less seriously than a complaint of sex or race discrimination would have been.  

This case illustrates some of the negative attitudes that prevail in the workplace, about older workers, including some people who aren’t even that old!  Care needs to be taken to prevent unconscious bias where older aged workers are equated with a lack of enthusiasm or as not being as good as younger talent.  Unless performance issues have been properly managed and recorded, an employer may be unable to justify the selection of one candidate over another, leaving them open to allegations of discrimination.

Citibank is currently appealing the Judgment so we are unable to tell you how much the employee was awarded, as this hasn’t been dealt with yet.

In the University case (Ewart v Chancellor, Master & Scholars of the University of Oxford), the University put forward legitimate aims for the policy of a justified retirement age, including inter-generational fairness, career progression for junior academics, facilitating succession planning and  promoting equality and diversity (recent recruits were more diverse than the existing workforce).  The Tribunal in that case found that the policy of the employer was in principle, capable of contributing to those legitimate aims, but statistical evidence suggested that it only created 2-4% more vacancies than would otherwise have arisen, which was felt to be trivial in comparison with the potentially discriminatory effect of the policy.  There was no evidence that a system of career progression for junior academics or expectation that they would be promoted, because senior posts were often filled externally.  The University could not therefore show that having their policy made a sufficient contribution to the legitimate aims it had put forward to justify its discriminatory impact. Given that the dismissal was unlawfully discriminatory, it also meant that the dismissal had been unfair.  

March 2020