Employer seeking ‘younger’ replacement guilty of age discrimination

In a recent decision of the Employment Appeal Tribunal (EAT), an employer who had included the word ‘younger’ in a person specification drafted for the purpose of replacing an employee, was found to have committed an act of age discrimination and had unfairly dismissed that employee.



The claimant in this case, Mr Beck, was employed as head of marketing by the Canadian Imperial Bank of Commerce. The Bank was not happy with his performance and dismissed him for redundancy, at the age of 42. An employment agency was instructed to recruit a replacement, and the Bank’s person specification for this purpose stated that it was “seeking younger, entrepreneurial profile”.



Mr Beck’s claim for unfair dismissal was upheld. The tribunal was satisfied that the Bank did not have a potentially fair reason for his dismissal. The tribunal also upheld Mr Beck’s claim for age discrimination.



The Bank’s appeal to the EAT has now been dismissed. The tribunal had noted that the word “younger” had been included in several drafts of the person specification, against the express advice of the Bank’s head of HR. The EAT agreed that the use of this word constituted the “clearest possible evidence of potential age discrimination”. The Bank attempted to argue that “younger” did not refer to age but referred to a less “senior” individual who would be less expensive, but the EAT was not convinced by this argument.



Tina Maxey, an employment solicitor at Steeles Law commented: “This case provides a good illustration of the approach taken by employment tribunals to the use of overtly ‘ageist’ language in recruitment materials.



"The Bank attempted to disprove the allegation of age discrimination by pointing out that one of the preferred candidates was 50 years old, and the person eventually appointed was 38 years old – just four years younger than the claimant (who had himself been appointed at the age of 41). Both the tribunal and the EAT gave this argument short shrift in light of the wording used in the person specification.”



She added: “The case also demonstrates that employers should take the advice of their own HR experts!”

Wales commissioner calls for older people's rights

Older people deserve a specific set of rights to ensure they are treated with dignity and respect, according to the older people's commissioner for Wales.

Ruth Marks said she heard of many instances where people were discriminated against because of age.

Examples included travel insurance premiums rising for those over 70.

An ICM poll for the commissioner suggested almost eight out of 10 people strongly support the introduction of rights for older people.
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Ms Marks said she wanted the government to ensure that older people are better protected from age discrimination, with a formal set of rights being brought in to help individuals and organisations identify how it can be identified and tackled.

She said that the survey of 1,500 people of all ages, commissioned by the commissioner, shows there was "overwhelming support" for the idea.

"Age discrimination often goes unrecognised in our society because it has, in many instances, become normal to discriminate unfairly against older people," she added.
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We're finding that there are specific areas, particularly in relation to financial services and in relation to health and social care where older people seem to be badly done by”

End Quote Ruth Marks Older people's commissioner for Wales

Alun Thomas, head of policy for the Older People's Commissioner, said around 2,000 people had contacted the commissioner's information line with concerns about discrimination.

"We're finding that there are specific areas, particularly in relation to financial services and in relation to health and social care where older people seem to be badly done by," he said.

"One example relates to the fact that insurance premiums suddenly take a certain hike once an individual reaches the age of 70.

"Another example would be where on health screening programmes, people are denied the right to health screening simply because of age and no other factor."

He said some rights were currently not being used effectively while others still had to be implemented.

He said he hoped the age equality aspects of the Equality Act 2010 would be brought in at the earliest opportunity.

The poll for the commissioner found 79% would strongly support the introduction of a set of rights. ICM interviewed a sample of 1,000 adults in Wales aged 65 and over by telephone from 18 - 25 March. A further 500 adults aged 18-64 were interviewed between 14 - 19 April 2010.


For more on this story: BBC News