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.

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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“Start Quote

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

Public will hold government to account under new equality rules

Change of approach marks end to box-ticking bureaucracy

People will be able to see exactly what public sector organisations are doing to tackle inequality under new plans to put taxpayers in control of holding public bodies to account, announced today by Equalities Minister Lynne Featherstone.

Launching a consultation on the new public sector Equality Duty, the Minister promised to make efforts to reduce inequality more transparent by increasing the amount of information public sector organisations must publish. This will mean they can be held accountable not by civil servants in Whitehall but by the people who actually fund and use their services.

The new approach marks an end to top down targets and box ticking bureaucracy.

Equalities Minister Lynne Featherstone said:

“Equality is central to delivering the fair and more efficient public services that support a fairer society. However, in the past equality has too often become a byword for box-ticking and bureaucracy, with public bodies focussing on red tape rather than results.

“The new Equality Duty will change this – instead of the Government imposing top-down targets and bureaucratic processes on organisations, we will require them to publish data on their equality results in their services and their workforce, empowering the public by giving them the information they need to hold organisations to account.

“Citizens will be able to see for themselves how a public body is performing on equality, because what really matters is delivering improved, more equal services, not following complicated and expensive procedures.

“To really make this work we need to know what you think, so please visit the Government Equalities Office website and have your say on the proposals.”

The public sector Equality Duty will replace three separate duties that require government departments, local authorities and other public bodies to take into account gender, race and disability equality both as employers and when making policy decisions and delivering services. The duty simplifies this requirement and also extends it to fully cover age, religion and belief, sexual orientation and gender reassignment.

The consultation is the latest stage in the Government’s equalities programme, which so far has included enacting new rules to help tackle the gender pay gap and provide greater protection for the rights of disabled people, as well as work to improve equality for lesbian, gay, bisexual and transgender people.