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Age discrimination can apply to anyone at any point in their life. It is, however, commonly applied to people at the beginning and end of their careers. Employment law protects certain characteristics in law, including age. This means employers will face penalties if found discriminating based on age.
ACAS is the public body responsible for dealing with employment disputes. They recently launched new guidance on age discrimination to clarify what it means.
ACAS Age Discrimination Guidelines
So what do these guidelines talk about? Well, they’re quite comprehensive. They mainly cover examples of age discrimination. However, it does list remedies that employers can offer to prevent bias based upon age.
Like other forms of workplace discrimination, there are key areas where it can rear its ugly head. These guidelines go into detail about age discrimination during:
- Recruitment and the hiring process
- Training and promotion
- Performance management
- Managing under-performance
- Retirement
These guidelines point out areas where employers may find themselves guilty of age discrimination. Methods of dealing with age discrimination are also presented. These go hand in hand with practise guidance and legal parameters that affect such cases.
The identification of age discrimination is a key concern of the document. It can come in many forms, including:
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimisation
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Example of an age discrimination case
To avoid bias, ACAS directs readers towards existing documentation found in its archives.
This brings to mind a case that deals with many of the age discrimination issues raised in the new guidance. This is the case of Eileen Jolly (86) v Royal Berkshire NHS Foundation Trust. It was a claim for age and disability discrimination in 2016.
The Trust’s Director investigated Mrs Jolly’s capabilities as a medical secretary. He placed her on ‘special leave’ and had her escorted from the building. This, in effect, was a suspension.
While the investigation was taking place, the tribunal discovered an important fact. The company’s director had overheard discriminatory comments about Mrs Jolly. These included comments about her being old and frail. Management suggested additional training for Mrs Jolly. However, the director stated that this was futile, as she was “stuck in old secretarial ways”.
The company held the following disciplinary meeting in Mrs Jolly’s absence. Despite asking for a change of date due to a medical appointment, the meeting still went ahead. They listed Mrs Jolly as ‘failing to attend.’
Mrs Jolly’s grievances were not taken into account by the management. They later terminated her on grounds of capability concerns. She appealed the decision but was told that she had done so too late.
Mrs Jolly issued a claim in the Tribunal. The basis of her claim on age and disability discrimination. The Tribunal ruled that there was no evidence that there was an issue with Mrs Jolly’s capabilities. This came alongside a multitude of other failings.
In October 2019, Mrs Jolly received compensation of £200,000. This all came from the age discrimination she faced under the NHS.
Future Implications for Employers
The new ACAS guidance mentions failure to provide training to an employee due to their age. Employers must follow their own procedures when investigating capability issues. Furthermore, they should not allow discriminatory views to influence the process.
Employers must make sure their decisions are not based on a protected characteristic. When making decisions, employers must be able to show what they based their decision on. The evidence must be indicative of this.
Discriminatory comments should never be taken into account. In Mrs Jolly’s case, it was clear that the director had taken the comments on board. Thus, this influenced his decision to terminate her position.
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