Lawyers are just as likely to fall victim to age discrimination in the workplace as other professions, writes Makbool Javaid. Makbool Javaid is head of the discrimination law team at Dibb Lupton Alsop.
Following Age Concern's recent “Age Discrimination” campaign, the battle for ageism to be made unlawful has come to the fore again.
A London industrial tribunal decided that the provisions of the Employment Rights Act 1996, which deny over-65s the right to claim unfair dismissal or redundancy payments, were incompatible with European Union law.
The decision followed the second reading of a Private Members Bill seeking to prohibit the use of age bars in job advertisements. The Government does not support the Bill, and is working with employers on a voluntary code of practice.
If the tribunal decision is appealed and upheld by the Employment Appeal Tribunal it will open the way for both men and women over retirement age to claim employment protection rights.
Despite the absence of studies or reliable evidence identifying age discrimination within the legal profession, its structure supports the contention that ageism is alive and well.
The majority of entrants to the legal sector are in their early 20s. If that were not the case universities would not be the focus of recruitment drives.
Increasingly the high costs of training new recruits is seen as a long-term investment of the employer rather than the profession as a whole. As a result, it could be said that young people are favoured as they are likely to remain loyal to their employer, while a mature entrant may be seen as being more likely to view financial support as no more than a fringe benefit. The profession also holds a societal assumption that the younger employee is more able to adapt and “fit in” with a particular work ethos.
Most job advertisements do not specify age limits although, on occasion, reference is made to the age group of the firm's partners or members of chambers a dubious signal that older applicants need not apply. Post-qualification experience is often used to indicate the expected age of applicants. This is is not always justified when the level of experience is a cloak for catching the younger lawyer.
Early partnership or appointment as a QC are the measures of success in private practice. Those unable to secure similar positions in their early 40s are often denied the chance thereafter and run the risk of being labelled as under-achievers. Women face double discrimination, being more likely to take a career break for family reasons during the years in which promotions are usually made.
The unsociable work pattern and a desire for a youthful image are driving many older lawyers out of the profession. It is not uncommon now for there to be an informal retirement age for senior partners or heads of chambers. This is not only discriminatory but is short-sighted since it leads to “corporate memory loss” a term coined to denote the failure by a business to retain its older workers, thereby risking losing the knowledge of the business gained over many years.
But in a fast changing environment there is a strong business case supporting the employment of older people, including the need to ensure a return on investment, the prevention of skill shortages and maximisation of recruitment potential. It is increasingly being recognised by other employers that an age-diverse workforce can be beneficial, particularly given the ageing of the general population.
There may be no alternative to legislation as was the case in other countries, notably the US, Canada and Australia.
The latest tribunal decision should serve as a warning that European law may provide victims of age discrimination with greater protection than before.
But, rather than piecemeal reform via European law, it may be better to aim for a clear statutory framework following consultation with employers.
Irrespective of whether there is legislation, the profession should take the lead in changing attitudes towards older workers. The fundamental principles of equality and fair treatment require us to stamp out irrational prejudices. If we do not then the whizz kids of today may find themselves the future victims of their own prejudice.