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I try to keep an eye out for recent cases where ageism has impacted the future of an organisation.  The truth is that more and more employment-related issues that come to dispute are featuring ageism as one of the reasons that employers are having to pay out at industrial tribunals. 

I was intrigued by a case that came up as a result of events during the pandemic, where an employer made some remarks that were seen by the tribunal as having the purpose, and certainly the effect, of violating the claimant’s dignity.  Indeed, the employer was judged to have created a degrading, humiliating, and offensive environment for her work in relation to the protected characteristic of age.   

The Complaint 

Ms Footer was complaining about the way that her employer had been dealing with pandemic regulations, and on 31st  March 2021, when the employer, Mr Fletcher, who was well aware of the claimant’s considerable anxiety about the Covid-19 situation, read out a newspaper article and pointed out that it said that doctors and nurses may have to play God and that younger and fitter people might be prioritized for ventilator treatment because they are more likely to survive.  This exacerbated Miss Footer’s anxiety, because Mr Fletcher was clearly implying that she was not one of those younger and fitter people with priority. 

The employment tribunal said these were acts of harassment of a relatively minor nature.  However, they were seen as relevant to the claimant’s protected characteristics of age and sex so her harassment claims succeed.  As a result, the employer was required to pay an award of over £20,000, of which more than 75% was for injury to feelings arising from discrimination and victimisation.  For some businesses £20,000 may not seem like a large amount of money.  For lower paid employees, like Miss Footer, this level of claim does reflect the salary that she had.  But for larger organisations, where they may have employees whose annual reward is £100,000 or even more, then the corresponding amount of such a claim may become substantial.  This can be further exacerbated if the loss of a job results in a considerable loss of earnings because of the difficulty that the employee has finding the next job. 

How Much could it Cost? 

Banks and professional service organisations and similar employers of high-value people have come to recognise the risk they face around racism and gender.  But this lack of awareness and sensitivity to the potential claims from ageism will, increasingly, create reputation damage.  For some smaller businesses that have highly paid employees, the cost could threaten the future of the business or significantly impact on profit in any one year. 

What surprises me is that, although the Human Rights and Equalities Commission puts very little emphasis on ageism and has done very little to try and shift the dial, employment tribunals are increasingly responding favourably to the advisors or lawyers supporting victims or claimants that are playing the ageism card.  The failure of employers to recognise that ageism is now a significant source of employment tribunal claims is putting them at risk. 

Wider Costs of Ageism Claims 

Claims can be costly if they succeed, both financially and reputationally.  Managing grievances and dealing with claims takes management, leadership time and often costly advisors whether they succeed or fail.   

However, there are bigger things at stake when you have a culture which fails to honour and support an important part of your employee pool in your organisation. 

I strongly recommend that anybody who’s responsible for recruitment whether as a hiring manager, an HR person or a senior leader, whatever the size of the organisation, takes a long, hard look at how they can make the most of the available pool of potential employees and the most of the people they’re already employing,  by re-evaluating ageism as a dimension of their diversity and inclusion procedures, policies, and practices. 

Charles McLachlan is the founder of FuturePerfect and on a mission to transform the future of work and business. The Portfolio Executive programme is a new initiative to help executives build a sustainable and impactful second-half-career. Creating an alternative future takes imagination, design, organisation and many other thinking skills. Charles is happy to lend them to you.