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Published 19 August 2022
Michelle Corrigan, a Senior Associate in the Employment team at international law firm DAC Beachcroft, addresses some frequently asked questions about the multi-generational workplace.
With the older workforce retiring later and later, we have never seen such a span of ages in the workforce. This generational diversity requires detailed consideration and understanding of the different well-being requirements across the age span. It is critical to avoid stereotypical assumptions and decisions which are unfair and in some cases discriminatory.
Hybrid working has created additional complications. A change to remote working or hybrid working can create a redundancy situation and a potential claim of unfair dismissal. When considering suitable alternative employment a Tribunal would look at the general situation but also ultimately whether subjectively, according to individuals’ positions, remote working is suitable. It is therefore important not to assume, but to ask and respond to each individual.
Age discrimination applies in the same way as all the other protected characteristics such as sex and race. Employers need to ensure that they do not fall foul of equality legislation in excluding certain categories of staff due to them being “too old” or “too young”, not effectively dealing with offensive or hostile environments, or even having practices which have the effect of excluding certain age categories. One of the key differences between age and other protected characteristics is that direct age discrimination is the only type of direct discrimination that can be justified. There are also exceptions (i.e. where an employer is permitted to treat employees differently on the grounds of their age) for example on the provision of certain benefits or, as with other protected characteristics, if there is a genuine occupational requirement.
There is also a risk of disability discrimination. A person’s age can affect both their physical and mental wellbeing and employers need to be alive to this. There are many tribunal cases where employers have been found to have discriminated where they have made assumptions about the physical and mental health of employees of different generations. For example, an employer who assumed that a 14 year old waitress could not cope with the stress of cashing up, and dismissed her on health and safety grounds, a supermarket who put pressure on a 73 year old colleague with symptoms of dementia to retire, and an employer who referred to an employee going through the menopause as a dinosaur and called her menopausal when he was criticising her performance.
Having policies and procedures which recognise the varied support that may be required is a good place to start. Training managers to be informed about and sensitive to these issues is another step in the right direction. An appreciation that everyone has something to give to a workforce regardless of their age is imperative. The most important message for employers is that everyone is individual, don’t assume, and instead have open and positive dialogues treating everyone with dignity and respect.
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