Business Law: Richard Wood reflects on the assumptions often made about older employees

Richard Wood of Employment and Advice Solutions

Richard Wood of Employment and Advice Solutions - Credit: Archant

The question of discrimination in the workplace is one which touches us all, whether as employee or employer. It is a huge topic and impossible to cover in full here. Instead, this column will concentrate on “age”-related discrimination.

The Equality Act 2010 brought together the various strands of existing law, whilst incorporating new legal aspects. The Act sets out the following ‘protected characteristics’ of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation. The Act then prohibited the following forms of conduct namely: direct discrimination, disability discrimination, discrimination on grounds of gender reassignment or pregnancy and maternity, indirect discrimination, failure to make adjustments for disabled people, harassment and victimisation.

The area in which many of you will come across these issues will be in respect of retirement. This is a worrying time for employees, and a serious logistical issue for employers. The legal position in respect of retirement is now relatively simple since the abolition of the default retirement age as of April 6, 2011. Thus, a compulsory retirement may now constitute age discrimination. It is possible for an employer to “justify” the retention of the default retirement age, for example in the fire brigade. However, the evidential threshold to justify such prohibited conduct is always likely to be high.

In these circumstances, an employee cannot usually be required to retire, but may do so by consent. How, then, can an employer lawfully terminate a contract of employment on grounds of age, if at all?

The answer seems to be that longstanding HR professional’s nightmare – by demonstrating that the employee is incapable of doing the job. The danger, expressed by Lady Justice Hale in a recent case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16, is in the making of assumptions that an aged employee must be less efficient. Hard, objective evidence is required in each individual case if dismissal is not to be ‘unfair’ and/or amount to an act of discrimination.

What is recommended is a system of discussions and appraisals during which; employees can set out their plans, and enable employers to structure their workforce in the future. Employers might also wish to review their incapability procedures. In the words of Oliver Cromwell, “put your faith in the Lord, but keep your powder dry”.

: : Richard Wood is a specialist in employment law with EAS.