A recent series of reports and statistics published by the Office for National Statistics paints a picture of an increasingly polarised labour market in the UK, with older workers reporting they feel disadvantaged because of their age. This view appears particularly prevalent following the closure of the furlough scheme, with studies suggesting that impending redundancies are likely to disproportionately impact older workers. In this article, we look at the legal protection available to workers who may be subject to age discrimination and explore the potential ways forward for employers and older workers.

Systemic age discrimination in the labour market?

Statistics published by the Office for National Statistics this month suggest older workers are at a higher risk of redundancy following the end of the furlough scheme, which closed on 30 September 2021. The figures show that up to 800,000 employees were still on the scheme when it closed, with more than 500,000 of these employees being over the age of 50. Whilst unemployment levels are generally expected to be lower than was feared in the early months of the pandemic, many businesses are expecting to make redundancies in the coming months. Given the disproportionate number of older workers who were still on furlough at the end of the scheme, many are concerned that this group will be the most impacted by redundancies.

In response to increasing levels of unemployment across all age groups, on 4 October 2021 the Chancellor announced a £500 million expansion to the Plan for Jobs initiative. However, concerns have been raised that, whilst specific support is being given to younger workers, older workers are being left behind. Kirstie Donnelly, CEO at City & Guilds, has said there are "still few safety nets in place for older workers", citing a "chronic under-investment" in training for older workers.

A recent survey by Legal and General Retail Retirement and the Centre for Economics and Business Research found that 52% of jobseekers over the age of 50 believed their age meant they were less likely to receive offers of employment. The jobseekers who were surveyed reported that they feel many employers perceive older workers as being too close to retirement age, overqualified, more expensive to hire or having a generational skills gap. Jobseekers said that they believe this inhibits their success in obtaining new employment. These figures support reports of an increasingly polarised labour market, with those affected arguing that employers' perceptions of older workers adversely impact their job prospects.

In response to this general feeling that older workers' employment prospects have been negatively affected by age discrimination, the Centre for Ageing Better, alongside the CIPD and the Recruitment and Employment Confederation, has launched a best practice guide. This is a recruitment guide which gives employers checklists and actions to help them become more age-inclusive in their recruitment processes. The guide encourages employers to include age in their diversity and inclusion policies, stating that age inclusivity is beneficial to the productivity of companies, allows the sharing of knowledge with younger employees and reduces the turnover of skilled employees by making them feel valued within the company.

Current protections for older workers

Age is one of the "protected characteristics" covered by the Equality Act 2010 (EqA 2010). This provides workers with legal protection against discrimination, harassment and victimisation on the basis of their age. However, discrimination because of a person's age is treated differently to the other protected characteristics (such as race, sex or disability, for example) as the EqA 2010 permits employers to discriminate directly because of a person's age, provided this can be objectively justified as a proportionate means of achieving a legitimate social aim.

To take a recent example, in Pitcher v. University of Oxford (which we explored in a recent Insight article) the tribunal found that the University's compulsory retirement age of 67 was objectively justified on the basis that this promoted equality and diversity by promoting inter-generational fairness and facilitated succession planning. Another common example is a minimum or maximum age for workers on construction sites where health and safety concerns may arise due to lack of physical strength. Whether a policy which discriminates against a specific age group can be objectively justified is highly fact-specific. However, there are clearly circumstances in which the exception is justifiable and necessary.

Conclusions

Despite the legal protections, age discrimination remains a challenge in the UK labour market. The impact of COVID-19 and the fallout from the end of the furlough scheme last month have brought this issue to the foreground, with older workers feeling they have been disproportionately affected and left behind.

Given the possible justification for some discrimination on the grounds of age in certain roles, it is not clear what legislative changes might be made to offer greater protection to older workers. Instead, commentators have called for a change in culture and perceptions. This could be driven by employers including age at the centre of their diversity and inclusion focus, alongside race, sex and disability. In turn, this focus could become part of employers' recruitment processes to ensure older workers are not "locked out" of the labour market.