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!”

The United Nations Principles of Older Persons

The United Nations Principles of Older Persons

The United Nations Principles of Older Persons was adopted by the UN General Assembly (resolution 46/91) on 16 December 1991. Governments were encouraged to incorporate them into their national programmes whenever possible. Some highlights of the Principles are:

Independence

Older persons should:

* have access to adequate food, water, shelter, clothing and health care through the provision of income, family and community support and self-help;

* have the opportunity to work or to have access to other income-generating opportunities;

* be able to participate in determining when and at what pace withdrawal from the labour force takes place;

* have access to appropriate educational and training programmes;

* be able to live in environments that are safe and adaptable to personal preferences and changing capacities;

* be able to reside at home for as long as possible.

Participation

Older persons should:

* remain integrated in society, participate actively in the formulation and implementation of policies that directly affect their well-being, and share their knowledge and skills with younger generations;

* be able to seek and develop opportunities for service to the community and to serve as

volunteers in positions appropriate to their interests and capabilities;

* be able to form movements or associations of older persons.

Care

Older persons should:

* benefit from daily and community care and protection in accordance with each society's

system of cultural values;

* have access to health care to help them to maintain or regain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness;

* have access to social and legal services to enhance their autonomy, protection and care;

* be able to utilize appropriate levels of institutional care providing protection, rehabilitation and social and mental stimulation in a humane and secure environment;

* be able to enjoy human rights and fundamental freedoms when residing in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their health care and the quality of their lives.

Self-fulfilment

Older persons should:

* be able to pursue opportunities for the full development of their potential;

* have access to the educational, cultural, spiritual and recreational resources of society.

Dignity

Older persons should:

* be able to live in dignity and security and be free of exploitation and physical or mental abuse;

* be treated fairly regardless of age, gender, racial or ethnic background, disability or other status, and be valued independently of their economic contribution.