Age law takes centre stage
Hiring and firing are key area for age discrimination cases, says Jeremy Hazlehurst
Earlier this week, the television presenter Selina Scott filed a claim for age discrimination against Channel Five. Scott, who is 57, said that she had been signed up to read the news while Natasha Kaplinski is off on maternity leave, but is expected to claim that her bosses went back on the agreement when they decided to opt for two other presenters, who are 28 and 32.
It is perhaps the highest-profile case of the thousand or so cases that have been brought so far since the Age Discrimination law came into existence in 2006, and it is bound to concentrate the minds of employers. But what exactly should they be aware of?
Samantha Mangwana, a solicitor in Russell Jones and Walker’s employment department, says: “If an employer takes a step that can be shown to be age discriminatory, they have to prove that it was a proportionate means to achieving a legitimate aim to avoid liability.” For example, a television company could argue that having a pretty young woman reading the news causes the ratings to go up. But they might have a tough job convincing a tribunal that this is legitimate.
She says that many of the cases being brought at the moment are about selection for redundancy. If employers are making people redundant, then they ought to be careful about the language they use. “The expression ‘burned-out’, for example, is commonly used, particularly in the media. However these words could be interpreted as referring to age,” says Mangwana.
There is also the problem of indirect discrimination. Where redundancies are being made as part of cost-cutting, for example, then you might cull high-earners, who will tend to be older. It is plausible to argue that this is age-discriminatory.
Richard Fox, the chair of the legislative and policy subcommittee at the Employment Lawyers Association, says that recruitment can also be a fraught area. There was a case where somebody was asked if he had the “hunger” for a job, which was interpreted as a comment about the applicant’s age.
He says that employers ought to be careful about using language that could be construed to be about their age. “Words like dynamism, vigour or enthusiasm, could be implicitly talking about age,” he says.
But what makes this legislation tricky is that ageism differs from race or sex discrimination in that it can more readily be justified. An employer might be able to justify age-discriminatory behaviour, such as offering health benefits to employees aged 25-45, but not above. Commercial airlines might also have a case for imposing an upper age limit on pilots, for example.
The problem seems to be that the implications of this new and complex legislation have not yet filtered down to line managers. It is all very well having people a the top of HR departments who are committed to being non-ageist, says Mangwana, but managers have to make sure that the policies are followed by line-managers who are actually doing the hiring and firing
Given the current state of the City, that’s something it might be sensible to be aware of.