Addleshaw Goddard

Age discrimination — time for some revision

A recent Employment Appeal Tribunal judgment highlighted the way in which age discriminatory remarks can result in protracted litigation, whether or not they influence decision-making in relation to an employee (Clements v Lloyds Banking plc). Direct discrimination complaints have become increasingly rare. Most employers have strong equal opportunities policies, which are reinforced by training and other diversity initiatives. Even in the absence of such policies, the majority of employees will be aware that directly discriminatory comments are unacceptable, whether in the workforce or otherwise. The flurry of press reports that surface when TV celebrities make discriminatory remarks reinforces that position.

Discrimination complaints tend to arise from policies or practices which apply to all but have an adverse impact upon a particular protected group. So, while some managers might prefer their staff to work full-time, for example, it would be surprising for that desire to be accompanied by a directly discriminatory remark to a person making a flexible working request. Nevertheless, perhaps because age discrimination is a more recent concept here, we still come across cases where managers have got into difficulties for making comments about an employee’s age, particularly in the context of performance management. In 2012, a DWP report confirmed that age-related assumptions and stereotypes remain embedded in the UK. Medical research by Florida State University College of Medicine published this year also revealed that older adults who perceive discrimination on the grounds of age experience lower physical and emotional health than those who perceive discrimination on the grounds of sex, race or sexual orientation…

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