How well-protected is your business against a discrimination tribunal?  You may answer that by pointing to your equal opportunities and inclusion and diversity policies with regard to ethnicity, race or gender.  You may highlight your disability practices.  Worryingly, relatively few businesses will even reference the greatest area of discrimination that we have within today’s workplace, when discussing their DEI strategies.  That is ageism and this is just one reason why ageism tribunals are a ticking time-bomb against which businesses need to have Employment Practices Liability Insurance protection.

Why do we need insurance protection for age discrimination tribunals?

In the year 2023/2024, there was an increase of £89,000 in the average amount awarded to those who successfully proved age discrimination.  From what had been only £14,000 in 2022/23, the average award amount rose to £103,000, an increase of 624%.[i]  It should be noted that age discrimination claims are uncapped and any amount could be awarded.

This should ring alarm bells amongst businesses with no Employment Practices Liability Insurance.  However, age discrimination cases are currently still rather rare.  Only 12 reached the compensation stage in 2024.[ii] Those workers suffering age discrimination are perhaps unaware of their rights under the Equality Act 2010.  This legislation lists age as one of the protected characteristics.  They are also perhaps of an age where going to a tribunal has not been the typical response to an incident at work.

Employment Practices Liability Insurance in practice

Even Government bodies have been accused of not devoting the same attention to age as to other aspects of discrimination.[iii]  And there is also an element of age discrimination cases at tribunals going under the radar.  Often, the judgement ends up being for constructive unfair dismissal, rather than age discrimination per se.  Even so, picking up the costs of a legal case would be significant, regardless of the outcome, unless an Employment Practices Liability Insurance policy was in place.

How common is age discrimination in UK workplaces?

Ageism is a horrifyingly widespread issue in our UK workplaces.  Between March 2020 and March 2021, there were 15,336 claims that included a complaint about age discrimination at employment tribunals.  This was more than double the number of discrimination claims, which is the next highest category.  This constituted a six-fold increase in age discrimination complaints.

Some of this could have been caused by the pandemic. Younger workers made redundant during the pandemic were twice as likely to be re-employed as older workers were.[iv] On the other hand, you could regard this as a watershed moment – one in which the true extent of ageism reared its ugly head.  The leap in complaints could be the new normal.

Tension in UK workplaces

That would be with good reason.  There is a clear tension in many workplaces, particularly those innovating fast by introducing technology.  The tension is built on some key factors.  One-third of the UK workforce is aged over 50.  One-in-five employees say they feel there is ageism in their workplace.  More than one-in-ten older workers have experienced negative comments about their age. Nearly a third believe they have been turned down for jobs because of their age.[v]  29% do not believe their workplace values older workers.

If we look to the USA, tech companies have been some of the worst offenders in terms of ageism. IBM has faced various lawsuits.  Mark Zuckerberg planted a seed in 2007, when he declared that younger people are “just smarter”.  All of this fuels ingrained stereotypes already present within workforces. Many managers intrinsically believe older workers are slower, unable to use technology, lacking energy and drive, and resistant to change.  Consequently, older workers are denied access to training, overlooked for promotion or not recruited at all.

There can, however, also be scenarios in which older employees are degraded and made to feel inadequate.  In one tribunal case, an older worker was humiliated by a boss who asked if they were “planning a nap”. In some instances, older workers are given nicknames like ‘gramps’.  They are told they are ‘old-fashioned’, ‘look worn out’ and are ‘long in the tooth’.  In another tribunal case, a company had to pay an employee who had been told they were “better suited to a traditional estate agency.”[vi]

Changing age profile of UK workplaces

Office banter is no defence when comments become upsetting and stressful.  One-in-three older workers has experienced age discrimination in the workplace and ageism is now endemic in our society.[vii]  There is a massive issue here.  By 2050, one-in-four workers will be aged over 65. Unless workplaces change their ways, a timebomb of tribunals could emerge.

As the Labour Government seeks to drive economic growth, the older working population should gain more prominence in policy thinking. There are hundreds of thousands of older workers who cannot get a job, partly because of ageism in recruitment practices.  In one study, applications were sent in for 1200 jobs as personal assistants and bar workers.  The only key detail that changed on the CVs submitted was the age of the person.  On some applications it was 25 and on the others 51.  The results spoke volumes.  The older applicant was invited to interviews less than half as often as the 25 year old.[viii]

Ageism in recruitment

Few businesses consider the context of age when seeking to make their recruitment more diverse and inclusive.  There is also insufficient attention paid to the promotion of older employees and their treatment at work.  In a survey by Reed Talent Solutions and 55/Redefined, one-third of retirees felt they had been forced out of the workplace.  These are constructive dismissal cases waiting to happen, again demonstrating the wisdom of buying Employment Practices Liability Insurance.

Discrimination on the basis of age can be:

• Direct (with older workers getting less favourable treatment than younger ones)
• Indirect (where a policy applying to all particularly disadvantages an older worker)
• Harassment-based (where an older worker faces hostility, harassment, intimidation, offensive remarks and treatment)
• Victimisation (where an older worker complains and then is treated in an unjust way).

It is worth remembering that all workers have rights under the Equality Act, as do apprentices and self-employed workers who are under contract to do work personally for an organisation.

The aim should be to create multi-generational workplaces that recognise the vast value that older workers can contribute, in terms of work ethic, expertise, life experience, soft skills and more.  Managers should look for any evidence of ageism or age-based harassment in their workplace and curtail it.  They should also lead by example and not engage in any so-called banter or organisation changes that humiliates older workers.  Treating all with respect, whatever their age, is key.

Age discrimination risk management

Particular reference should be paid to ageism within strategies that impact recruitment, pay structures, performance reviews, internal promotions, redundancy selection, staff training, employee benefits and employee dismissals practices.  Employers should review all of these and look for trends that suggest that there could be ageism at play. Amending the practices underpinning the trends, addressing stereotypical viewpoints and documenting efforts to combat these, is vital.

With this issue having the potential to become such a hot potato within rapidly evolving and dynamic workplaces – and ones in which redundancies may be necessitated in a tougher economy, now also facing up to the impacts of a global trade war – it pays to have an insurance policy in place.

Employment Practices Liability Insurance safety net

Even if an allegation is not upheld, the cost of any legal case brought to tribunal can be eye-watering, both in terms of the proceedings and the professional legal expertise you are likely to require.  The policy that your business needs, to help you put your case forward, with your legal costs covered, is probably Employment Practices Liability Insurance.  By drawing on the resources that it will provide to you, to try to steer you clear of any issues before they emerge, you can also perhaps create the more inclusive and diverse workplace that you desire, by tackling ageism in the optimal way.

To talk to us about Employment Practices Liability Insurance, or legal expenses protection, please call 0113 244 8686 or choose a local broker from the map.

[i] https://www.foxlawyers.com/press-release-average-amount-awarded-in-age-discrimination-cases-soars-624-in-past-year-to-103000/

[ii] https://www.wrighthassall.co.uk/knowledge-base/acas-and-employment-tribunal-statistics-uk-workplace-disputes-in-the-uk

[iii] https://committees.parliament.uk/writtenevidence/22776/html/

[iv] https://ageing-better.org.uk/blogs/ten-facts-show-why-ageism-so-harmful

[v] https://www.hrmagazine.co.uk/content/news/ageism-most-commonly-experienced-at-work-study-finds/

[vi] https://gunnercooke.com/are-employers-sitting-on-an-age-discrimination-time-bomb/

[vii] https://committees.parliament.uk/writtenevidence/22776/html/

[viii] https://ageing-better.org.uk/blogs/ten-facts-show-why-ageism-so-harmful