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Has the number of age discrimination cases risen as significantly as some headlines suggest?
There were a lot of headlines recently about age discrimination cases rising. But some questioned whether the figures were being hyped for a particular agenda.
The figures show that the number of receipts under the jurisdiction of age discrimination in employment tribunals reached 3,668 in 2020, up from 2,112 – or 74% – in 2019. However, age discrimination claims represent a very low percentage of tribunal cases and so any increase can seem disproportionately large and the figures fluctuate year on year. In 2017, when there were 6,704 claims, for instance; in 2016, when there were 7,498 claims and in 2015 there were 12,654 claims. The rise in age discrimination complaints comes against a decrease in the total number of jurisdictional complaints in employment tribunals between 2019 and 2020 (down from 183,207 in 2019 to 180,430 in 2020).
According to the wonkypolicywonk blog, if you strip out the figures for Scotland, which appear in large part to be due to a single multiple claimant case relating to the Scottish Police Federation, there was only a 30% increase in England & Wales in 2020 compared to 2019 and a 21% increase in the October-December period 2020 compared to the same period in 2019. This is important if the aim is to show that the increase is due to Covid because, according to wokypolicywonk, that is the first quarter in which we can expect to see any impact of Covid and the associated lockdowns on the number of employment tribunal discrimination claims.
According to the Office for National Statistics, while the impact of the coronavirus pandemic has been greatest for younger workers, older workers aged 50 years and over have been affected to a greater extent than those in the middle age groups. Moreover, there was a fall in the number of those employed aged 50 to 64 years over the year December 2020 to February 2021, despite an increase in the population aged 50 years and over in this period. This decline was driven by those aged 50 to 54 years and 65 years and over. Older people are also more represented in the self-employment figures and self employment has seen large decreases during the pandemic.
Moreover, many over 50s are also still on furlough and there is evidence that older people, once unemployed, are likely to find it more difficult to get back to work and to be more likely to face longer term unemployment.
Some employment law firms say they have seen a rise in age discrimination cases in the last year – Monaco Solicitors tweeted that it had seen a rise in cases, stating “we have definitely seen an increase in age-related enquiries during the pandemic, particularly in redundancy cases and more needs to be done to prevent such discrimination taking place and to encourage age diversity”.
But others have not recorded any significant increase. Slater Heelis says it has not seen a significant rise in age discrimination claims being brought, but has noted the official figures.
However, it points out that age discrimination claims can be brought by older workers as well as those at the younger end of the scale, many of whom are workers on casual or zero hours contracts who have been particularly hit hard over the course of the pandemic.
It says the increase in age discrimination claims could be down to:
– Workers feeling disadvantaged during the recruitment process on the basis of age;
– Older employees being selected for redundancy over younger colleagues;
– Employers seeking to change terms and conditions as a result of the economic impact of the pandemic;
– Younger workers with casual contracts being targets for redundancy (as a means for employers to avoid liability for statutory redundancy payments);
Also, it says employees with less than the two years’ service required to bring a claim for unfair dismissal may be relying on age as a protected characteristic to bring a claim under the Equality Act 2010 in respect of their dismissal particularly if they did not receive redundancy pay.
Helen Frankland from Slater Heelis says it is something to watch: “Redundancy among over 50s is at an all-time high and with hundreds of thousands of over 50 workers still on furlough, there is a significant chance that there will be further redundancies amongst this age group once the job retention scheme ends.
“Once made redundant, older workers often struggle to secure alternative employment and often feel disadvantaged when applying for jobs compared to their younger counterparts and as a result are more likely to suffer long term unemployment. ONS statistics tell us that unemployment levels amongst workers over 50s has increased in the last year and that they have experienced the biggest percentage increase of all age groups.”