Ageism in the workplace

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Under the Equality Act 2010, individuals are protected from age discrimination at all stages of the employment cycle.

How then should an employer effectively manage older employees? It has been five years since the default retirement age was abolished. The case of Thomas v BNP Paribas Real Estate Advisory & Anor [2016] demonstrates the potential consequences companies face when they fail to adequately manage older employees. The case concerned an employee who had been employed by the Respondent Company for over 40 years and was then made redundant, following a consultation process during which the employee was placed on garden leave.

At first instance, the tribunal dismissed the Claimant’s claim for unfair dismissal and age discrimination. The Claimant then appealed this judgement and the case was heard by the EAT. It heard how the Claimant received a letter from the company whilst on garden leave addressed to “Paul”, when in fact his name was Peter. The tribunal characterised this error as insensitive.

The EAT upheld the Claimant’s appeal and found that the ‘perfunctory manner with a lack of sensitivity’ redundancy consultation, rendered the redundancy dismissal as unfair. The EAT upheld the earlier decision made by the employment tribunal that the reason for the dismissal was redundancy and not age. It held that the way in which the redundancy process had been handled suggested the redundancy was not genuine: “a long serving employee on gardening leave with no work, no contact with clients and no contact with fellow employees even before the consultation process has started.”

This case also demonstrates the importance of following a meaningful consultation process. In general it is best practice to allow employees to continue working during their consultation process rather than placing them on garden leave.

Dom Bonham