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In brief

Whether employers are making redundancy, promotion or more general day-to-day decisions, they should not disregard the risk of age discrimination simply because the employees concerned are of fairly similar ages.  In an article published by Employment Law Journal, John Bracken analyses three cases which highlight some of the perils employers face when making management decisions about older members of their workforce.


Key Takeaways

  • Age is a protected characteristic that is not binary or unique to a particular group and we will all benefit from the protections afforded to this characteristic during our working lives. Government statistics show that more than 15,000 age discrimination claims were lodged between March 2020 and March 2021, more than double the number of disability discrimination claims in the same period and a six-fold increase on claims lodged in the previous year.  
  • The number of over-50s in the workforce is rising steadily in the UK.  This age group then suffered the largest increase in unemployment of any age demographic over the course of the pandemic. It is very likely that we are now seeing cases brought by older employees as a result of decisions made by employers then now reaching the employment tribunals.
  • In contrast to other protected characteristics, it is possible to objectively justify a directly discriminatory act or omission. Employer processes should be clear and transparent in order to demonstrate objective decision-making.   
  • While it might seem implausible that a minimum age difference between two employees could lead to less favourable treatment because of age, there is no hard and fast rule. This is a tricky and nuanced area and employers should not disregard the risk of discrimination. 
  • Employers should keep the terms of employee benefits under review to reflect changes in the law, such as the increase in the state pension age.  
  • This briefing was first published in Employment Law Journal, October 2022 #234. 

To discuss any of these issues further, please get in touch with your usual Baker McKenzie contact.
 

Author

Monica Kurnatowska is a partner in the Firm's London office. She is a leading employment lawyer who is recognised by The Legal 500 and Chambers UK as a "highly respected, extremely impressive and an exceptional legal mind; she has a tremendous appreciation of the details." Monica is a member of the Consultation Board of PLC Employment Online and is a regular speaker at internal and external seminars and workshops.

Author

John Bracken is an Associate in Baker McKenzie, London office.

Author

Rachel Farr is a Senior Knowledge Lawyer in Baker McKenzie, London office.

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