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Age Discrimination During Redundancy Process

Feb 4

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Redundancy is a challenging and often distressing process both for employees and employers. When a job role is made redundant, it generally means that the employee’s role is no longer needed and they may face dismissal. However, the redundancy process must be carried out fairly. One critical aspect of this fairness is avoiding age discrimination during redundancy procedures.


Age discrimination occurs when an employee is treated less favourably because of their age and this is prohibited under UK employment law. The Equality Act 2010 protects individuals from being discriminated against based on their age among other protected characteristics such as race, gender, disability and religion.


Legal Protections Against Age Discrimination


The Equality Act 2010 makes it illegal for employers to discriminate against employees because of their age. The law ensures that employers have a duty to provide a fair and transparent redundancy process taking into consideration the employee's age only in a non-discriminatory way.


Some key protections include:


  • Direct Discrimination: This occurs when an employee is treated less favourably because of their age. For example, an older employee is selected for redundancy simply because of their age, even though their performance is comparable to younger colleagues.


In Donkor v The Royal Bank of Scotland UKEAT/0162/15 the EAT held that it was direct age discrimination for an employer to only offer voluntary redundancy to employees aged under 50 in a restructuring exercise because of the extra cost associated with those over 50.


  • Indirect Discrimination: This happens when a seemingly neutral policy or practice disproportionately impacts employees of a particular age group. For example, a redundancy policy that prioritises "recent hires" unintentionally disadvantages older employees who have been with the company longer, even if they are equally skilled.


In Rolls-Royce plc v Unite the Union [2009] IRLR 576, the majority of the Court of Appeal held that an employer's use of length of service in a redundancy selection matrix was lawful. While it constituted prima facie indirect discrimination, it was objectively justified.


  • Harassment: Age-related harassment such as making inappropriate jokes or comments about an employee’s age during the redundancy process is also prohibited under the Equality Act. For example, an employee faces jokes or derogatory comments about their age during the redundancy process such as being told they're "too old to start over" or "too slow to adapt."

 

  • Victimisation: Employees who raise concerns about age discrimination during redundancy or lodge a grievance are protected from suffering a detriment by their employer. If an employee suffers any disadvantage or retaliation for raising concerns, this can also form a claim for discrimination. For example, an older employee is treated unfairly after raising concerns about age discrimination in the redundancy process, such as being excluded from future opportunities or given less favourable treatment.


How Employers Can Avoid Age Discrimination During Redundancy Process


To ensure compliance with the Equality Act 2010 and to avoid accusations of age discrimination during redundancy processes, employers should:


  1. Use Fair and Objective Selection Criteria: Employers must ensure that the criteria for selecting employees for redundancy are objective, transparent and fair. The criteria should be applied consistently across the workforce. 


  2. Document the Process: Employers should keep detailed records of the entire redundancy process including how decisions were made, what criteria were used and how each employee was assessed. This documentation can help demonstrate that the redundancy process was fair and transparent if challenged.


3.   Offer Redeployment or Retraining: Employers should offer alternative roles or retraining to employees at risk of redundancy and should not dismiss employees based on assumptions about their ability to adapt to new roles due to age.

 

In London Borough of Tower Hamlets v Wooster UKEAT/0441/08 The EAT upheld the tribunal's decision that Mr Wooster had been directly discriminated against on grounds of his age. The tribunal had been entitled to draw the inference that the employer's failure to redeploy him, or extend his employment by further seconding him, was motivated by a desire to terminate his employment before he reached 50. Mr Wooster had been treated less favourably than a hypothetical comparator who was not aged 49. 


  1. Review Severance Packages: Employers must ensure that severance packages and benefits offered to employees are fair and not based on discriminatory factors such as age.


  2. Ensure Non-discriminatory Communication: The way employers communicate with employees during redundancy should be professional, respectful and non-discriminatory. Age-based stereotypes should be avoided in all interactions.


woman and man looking at paper

Taking Action Against Age Discrimination


Employees who feel they have been discriminated against due to age during the redundancy process have several avenues for recourse:


  1. Internal Complaints: Employees can raise the issue internally through their employer’s grievance procedure. It is important to ensure that concerns are documented and addressed promptly.


  2. Employment Tribunal: If internal complaints are not resolved satisfactorily, employees can file a claim with an employment tribunal. In claims of age discrimination, the employee does not have to prove intent but rather that age was a factor in the decision-making process.


  3. Time Limits: Employees must be aware of time limits for bringing claims. Age discrimination claims to an employment tribunal must typically be made within three months of the date of the discriminatory act or decision.


Conclusion


Age discrimination during the redundancy process is a serious violation of an employee’s rights under UK law.  For employees, it is important to be aware of their rights and to challenge any instances of unfair treatment. Taking action quickly through internal procedures or legal channels can help ensure that the redundancy process is both lawful and fair. Age should never be a reason for dismissal or disadvantage in the workplace and individuals are entitled to seek legal redress if they believe they have been unfairly treated.

 

Call a specialist employment lawyer  


Magara Law is an employment law firm in Bicester, Banbury, Reading and Paddington, London, and services clients nationwide. 


For more information or to contact our employment law team at Magara Law, call 01869 325 883 or email roy@magaralaw.co.uk.





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