City Age Discrimination - Over The Hill at 42?

age discriminationOne third of British people in their 50s and over have said that they have experienced age discrimination. The FT has reported that ‘age discrimination is now seen as a more widespread problem in the City than sex discrimination’ largely because the focus has been on gender pay, promotion and retention issues. Silos of age discrimination are likely to be found in the front office sales and trading functions in the financial services sector due to cultural and attitudinal reasons rather than in back office or management functions.

Age discrimination claims have been on the rise in the City (although many are settled) because of changes to bank remuneration policies. Instead of final salary pension schemes and big cash bonuses, deferred shares are becoming the norm meaning that older employees are sticking around for 3-5 years to claim these shares and are more likely to take action if they believe that they are being ousted for age discriminatory reasons.

In 2009, Gareth Brahams, Managing Partner of BDBF successfully represented Achim Beck, a City banker who won an age discrimination case at the age of 42, becoming one of the youngest people to be sacked because they were too old. The employment tribunal found that the bank, Canadian Imperial Bank of Commerce, had been "hopelessly unfair" in how they had treated Mr Beck, ruling they had used a "sham" redundancy process to replace the banker with someone younger.

Similarly, the man nicknamed the ‘godfather of retail’ in the City won his claim against Credit Suisse for age discrimination after he was dismissed at the age of 55.

In 2011, the default retirement age (DRA) under which employers could force employees to retire at 65 was removed. However, a recent survey of 300 employers found that: (1) almost 150 of them would like the DRA reinstated; and (2) 72% of the 300 would still have a DRA if it had not been abolished. In the City, most stock option and share plans still refer to a default retirement age of 65.

There have also been some recent high profile age discrimination cases in the media industry where individuals have been replaced by a younger person:

  1. John McCririck’s (racing pundit) case against Channel 4. He argued that he lost his presenting job to younger rival, Clare Balding because of his age. See Ruth Badrick’s comment on this case in The Times on 3 October 2013.
  2. Miriam O’Reilly’s (former Countryfile Presenter) successful age discrimination claim against the BBC on the grounds that she had been replaced in favour of a younger colleague.

When is age discrimination justified?

It is unlawful for employers to discriminate against an employee on the basis of age although employers can justify the discrimination if: (1) there is a legitimate business aim; and (2) it is proportionate. For example, in the O’Reilly case, the BBC’s desire to appeal to younger viewers was a legitimate aim but it was not necessary to dismiss older presenters to achieve this.

The justification defence is a difficult argument to win, which may explain why Channel 4 is not running this defence in Mr McCririck’s case. Instead, they  claim that they axed him because of his ‘exaggerated style’ and ‘ability to offend’ not to mention his reality TV show appearances (Channel 5 fans may recall him strolling around the Big Brother house in his underwear). This argument may have some sway alternatively the Tribunal may say that Mr McCririck has acted like this for his 28 year career with Channel 4 and the only difference between then and now is his age, therefore it’s age discrimination. The Employment Tribunal’s judgment is imminent in November and BDBF will be reporting on its implications.

In the meantime, as redundancy season in the City looms, a pattern emerges that those perceived as ‘over the hill’ may be deemed underperformers, score less well than their younger peers in selection criteria, won’t be redeployed within the company and may therefore have potential unfair dismissal and age discrimination claims.

If you are concerned about redundancy or age discrimination, please contact BDBF LLP on info@bdbf.co.uk or 020 3586 3300.