Age discrimination, also referred to as “ageism”, occurs where an individual is treated unfavourably because of their age. The Equality Act 2010 prohibits direct and indirect age discrimination, harassment and victimisation because of an individual’s age. However, in an employment context, an employer may justify direct and indirect age discrimination if it can demonstrate that the discriminatory act or policy is a proportionate means of achieving a legitimate aim. Direct age discrimination is the only form of direct discrimination that is capable of being justified.
Are older women worse off?
Last week, the Women and Equalities Committee called for gender pay gap reporting to be urgently reinstated (it was suspended in March 2020 due to the pandemic) given the disproportionately negative impact the coronavirus pandemic has had on women.
Research conducted over the last few years has shown that the earnings of older female workers are affected by the intersection of gender and age discrimination, so older female workers are at even greater risk of staying in low pay compared to the earnings of men in similar positions than their younger female counterparts. For example, it was reported in late 2019 that the gender pay gap widens to the greatest extent when workers reach their 50s. The ONS’s annual survey of hours and earnings shows that the average annual salary for women aged 50-59 was £32,052 in the year ending in April 2018, compared with £44,561 for men of the same age. This must be seen within the wider context of men holding the majority of positions of power globally; indeed, only 5% of the UK's FTSE 100 chief executive officers are female. This clearly indicates that there are issues within pay review and promotion processes which must be reviewed to address this imbalance.
A key element of progression is investing in the skills and training of staff. The UK’s track record on this is grim and it seems that older workers face discrimination in career progression since, among OECD countries, only Turkey and Slovenia have lower levels of on-the-job training for older workers than the UK. Data analysis by Rest Less showed that older workers were the least likely to have taken part in workplace training: 23% of 55 to 65-year-olds took part in any workplace training between 2004 and 2017, compared with 33% of 16 to 24-year-olds. Continued training and development is essential as technology continues to advance and workplaces become ever more digital. Older employees need support to ensure their skillsets allow them to compete in the digital landscape.
The problem is not just in relation to promotion and pay. Age bias in recruitment and negative stereotypes, including that older workers are less productive, may affect an older female worker’s employment prospects. Contrary to the stereotypes, according to the Milken Institute’s Centre for the Future of Aging and the Stanford Centre on Longevity, older employees have a strong work ethic, take fewer sick days and are better at resolving conflicts. PwC’s Golden Age Index has shown that embracing older people in the workforce can boost a country’s GDP by £2.7 trillion. There is therefore a clear benefit to businesses and the economy generally of having an age diverse workforce and of engaging in age-positive hiring to achieve this.
A further factor affecting older workers’ career and pay progression which is particularly pertinent in the case of women is increased caring responsibilities. Research by the Institute for Fiscal Studies found that one reason for the gender pay disparity between men and women over 40 is that women take time out of work to care for children or elderly relatives which affects their earnings when they return to work. It is important that employers provide flexible working opportunities and family friendly policies to retain their older staff. While the Resolution Foundation report ‘Low Pay Britain 2018’ found that employers considered that their existing procedures for flexible working could accommodate the needs of older workers who face health concerns or caring responsibilities, the data suggests that flexible working is more likely to be requested by younger workers with childcare responsibilities than older workers. More must therefore be done to ensure that older workers feel that these policies are also for their benefit, and feel confident enough to make use of them.
Another issue is the impact of the menopause. Whilst this is often a taboo subject, it is a challenge faced by older women in the workplace that must be addressed. Evidence shows that the difficulties which may be experienced during the menopause can be aggravated by stress. The more senior an employee’s role, the more pressurised, demanding and stressful that role is likely to be. Add to this the symptoms of menopause (which can include hot flushes, inability to sleep, anxiety and problems with memory and concentration) and you have an employee who may be struggling to cope. All too often, the impact of menopause is overlooked and older female workers find themselves being accused of poor performance or lacking commitment to the job. Employers should increase managers’ awareness of the symptoms and likely impact of menopause so that they are able to spot the signs that an employee may be struggling and support older female employees who, for example, may wish to work fewer hours or reduce their responsibilities as a result. The wellbeing of these workers can also be supported through the provision of coaching and counselling.
What can employers do?
While the world faces the continuing challenges presented by the Covid-19 pandemic, we cannot neglect the challenges faced by women in the workplace in respect of both age and gender and the disproportionate impact the pandemic seems to be having on them.
- Recruit age-positively: ensure that job adverts are accessible to older workers and use age-neutral language and images.
- Promote an age-positive culture: emphasise the importance of older employees’ contribution to the organisation and appreciate and recognise the benefits to the business of having an age diverse workforce.
- Training: diversity training, including on unconscious bias (no, we do not agree that such training should be abandoned, notwithstanding the bad press it seems to have of late), to avoid the making of assumptions based on age and stereotypical thinking about older women in the workplace.
- Flexible working: ensure that older female employees feel that flexible working policies are also for their benefit, whether they are experiencing health concerns or caring responsibilities.
- Career development and training: provide opportunities for workers of all ages to develop their careers and provide access to training to ensure their skillsets remain relevant and up-to-date. Remember, there is no longer a compulsory retirement age and so no age or point at which an employer can suggest to an individual that they retire – or force them to do so - without objective justification. Do not assume, therefore, that an employee will not wish to progress, or will want to leave soon simply because they have reached a particular age. Review promotion and salary review practices and policies to ensure that they do not disadvantage older employees.
If you have any questions or concerns about the content covered in this blog, please contact a member of the Employment Law team.
About The Authors
Natasha acts for both employers and senior executives in a wide variety of sectors including (but not limited to) financial services, law firms and other professional services firms and retail and luxury brands.
Natasha is a tenacious litigator and an astute negotiator. She acts in relation to the full range of employment-related issues. She particularly enjoys handling whistleblowing and discrimination cases and helping clients achieve success.
Eleanor is a trainee solicitor in the Employment team. Her first seat was in the Medical Negligence and Personal Injury team, where she assisted with claims relating to injuries arising from birth, fatal accidents, colorectal injuries and delayed diagnosis of cancer. Her second seat was in the Immigration team, where she assisted both corporate and private clients with their UK immigration matters.
Prior to joining Kingsley Napley in September 2019, Eleanor volunteered at Citizens Advice, the Personal Support Unit and trained as an accredited mediator.
Özlem is a Professional Support Lawyer in our Employment Team.
Before joining Kingsley Napley, Özlem was a Tutor and Team Leader at BPP University’s Law School, teaching on the Legal Practice Course. She taught the Employment Law, Business Law & Practice, Corporate Finance and Equity Finance modules of the course, as well as the skills modules of Interviewing & Advising and Professional Conduct & Regulation. She also supervised a number of Masters level projects on employment law related topics.
Natasha Forman (née Koshnitsky)
Eleanor Lynch (she/her)
Professional Support Lawyer