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Ageism – the unspoken workplace discrimination

Last year Citibank lost an age discrimination claim brought by ex-employee Niels Kirk. The former senior manager was 55 when the bank made him redundant. Kirk had worked at the bank for 26 years and was regarded as a  high performer. He attributed the bank’s decision to make him redundant to a culture in which managers who hit their fifties were expected to make way for younger staff.

If Employment Tribunal statistics are anything to go by, there are many other employees in Niels Kirk’s boat. Age discrimination claims at the Employment Tribunal rose 74% over the last year. October to December 2020 saw a staggering 176% rise in age discrimination claims compared to the same period the year before. It appears that the pandemic has worsened ageism in the workplace.

Niels Kirk was in no doubt that his redundancy was due to ageism. He said he had been told “you’re old and set in your ways”, and that his age and many years’ service counted against him. The bank needed a more “agile approach”, they told Kirk. He assumed they meant youthful. Although Kirk complained to Citibank that his redundancy selection was age discrimination, he never received a meaningful response. 

In Citibank’s handling of Niels Kirk, they made a number of common mistakes that can cause or contribute to age discrimination:

  1. Not taking the employee’s concerns seriously. The Tribunal found that the bank appeared to have dismissed Kirk’s complaints without making any real attempt to investigate them. Many employers are alert to potential complaints of discrimination on the well-known protected characteristics of race, disability and religion. Age discrimination complaints often fly under the radar. They should be treated as seriously as any other discriminatory complaints and a formal grievance process should be followed.
  • Derogatory comments about the employee’s age. The negative remarks about Kirk’s age were humiliating and insulting. The Tribunal found they amounted to age harassment. Employers should be aware that the perception of the complainant is key when deciding if particular conduct is harassment. It does not matter if comments were not intended to offend.
  • Relying on inaccurate assumptions about older workers. Kirk was made redundant because the bank thought his age made him stuck in his ways. This was based on the fallacy that older workers have less interest in exploring new ideas or developing new skills. Employers should avoid sidelining older workers over outdated perceptions about their abilities as this could be discriminatory.
  • Using discriminatory redundancy selection criteria. The Tribunal found that Kirk’s age was one of the reasons for his redundancy. Employers should take care not to use discriminatory criteria when selecting employees for redundancy. Objective selection criteria are preferable.
  • Using discriminatory language to describe desirable qualities for employees. Citibank prioritised “agility” among its managers, a term which equates to youth. To avoid age discrimination during recruitment, employers should avoid showing a predetermined bias for applicants with a particular characteristic. Such language might deter older applicants. The focus should instead be on skills and experience that demonstrate an objective approach to recruitment.

Employers should treat age as an asset, not a hindrance. A more diverse workforce includes having employees of different generations, in addition to other markers of diversity. Each age group will contribute different perspectives which can give an organisation a competitive advantage. Employers should therefore ensure they have strategies in place to make their workplaces age inclusive.

LexLeyton can assist employers with advice and training on any particular issues arising from older employees in the workplace. Please contact us at legal@lexleyton.co.uk if you would like to discuss this topic in more detail.

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