Age discrimination – be careful of unconscious bias

Posted by Debra Gers on
It's hard to imagine that it was only ten years ago that legislation was first introduced prohibiting age discrimination in the workplace with the implementation of the Employment Equality (Age) Regulations 2006 on 1 October 2006. The Regulations were subsequently replaced by the Equality Act 2010.

The Act aims to ensure equality of opportunity at work and prohibits discrimination, harassment and victimisation in relation to nine “protected characteristics” one of which is age. The others are disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Recent reports however suggest that age discrimination is still prevalent especially in the context of recruitment.

According to research by Totaljobs, 63% of 55 to 64 year olds felt that they were discriminated against by a prospective employer because of their age. Worryingly, 82% of this age group and 62% of 45 to 54 year olds saw their age as a disadvantage when applying for jobs. By contrast, only 16% of 25 to 34 year olds felt the same.

Andy Briggs, aged 50, is the chief executive of Aviva UK and Ireland and was recently appointed by the government as the "Business Champion for Older Workers". In an interview published yesterday, he reported that people aged over 50 applying for a job were five times more likely to be asked for interviews if they did not disclose their age. He is of the view that ageism is as bad as racism or sexism.    

Some of the difficulties faced by older workers start at the very beginning of the recruitment process with the wording of the advertisement itself. In February 2016, the Equality and Human Rights Commission reported that it had received more than 100 complaints about discriminatory adverts for jobs and services. For example, the advertisements stated that the organisations were looking for "young" or "mature" candidates or that "over 45s need not apply". Helpfully for employers the EHRC has now published good practice Guidance on Advertising for advertisers and publishers.

Neutral language should be used and words like "energetic"," dynamic", "enthusiastic" and "lively" should be avoided as they could be used as evidence of a discriminatory culture.

Getting it wrong can be costly. In McCoy v McGregor & Sons Ltd the advertisement for a sales representative stated that “youthful enthusiasm” was required. Mr McCoy was 58 with 30 years’ experience but two younger and less experienced people were appointed. At the interview he was asked questions which linked his age with energy, motivation and enthusiasm. He brought a successful age discrimination claim and reportedly received compensation of £70,000.  

It is often at the interview stage that the recruitment process goes wrong. Inappropriate, discriminatory questions may be asked or personal information requested. Alternatively, decisions may be based on assumptions and stereotypes and unconscious bias may influence the decision making process.

Assumptions are often made that someone is too old to do the job in question and that older people are set in their ways or less innovative. It is important to remember though that the legislation protects younger workers too and interestingly, one of the very first age discrimination claims involved a young person. A 19 year old was dismissed on the basis that she was too young to do the job in question. She brought a successful claim for age discrimination and was awarded £1,500 for injury to feelings.  

Significantly, an employer is vicariously liable for the acts of its employees during the course of their employment (as well as employees potentially being personally liable). The employer will only escape liability for any discriminatory recruitment processes if it can show it took all reasonable steps to prevent the discrimination occurring. For example, that it had in place an equal opportunities policy and that it trained its staff in good recruitment practices.

Current statistics reveal that 27% of men aged 65 to 70 are in paid employment compared to 15% a decade ago and for women it is 18%. The number of people aged over 70 and still working is around 258,000.

In an earlier interview, Mr Briggs expressed his concern that many employers are losing talented older workers because of a lack of flexibility about working hours. Once again, he says, unconscious bias means that organisations are not supporting those older workers in their 50s and 60s who have caring responsibilities for their elderly parents. They often need more flexible working hours or part-time working opportunities and if those aren’t available, they feel that their only option is to resign. Mr Briggs, who plans to work into his 70s, cites the clear business benefits of employers being more flexible especially as the overall trend is for people to work longer as life expectancy increases. 

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Debra is responsible for the firm’s public employment training programme.

Debra Gers
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