The Prime Minister’s big reshuffle of Cabinet personnel has generated headline news and some angry allegations after the removal of a dozen middle-aged and older men from his ministerial ranks. Would it be any different though, in any other organisation?
The idea that the group of staff targeted represent the ‘pale stale males’ of an organisation may ring discrimination alarm bells for those in HR who remember that when Age Discrimination was first introduced in the UK back in 2006, it was widely predicted that it would lead to numerous claims being brought by this particular group of workers. The reason cited was that the overwhelming majority of people who had used similar statutory protection in the USA had been men of a certain age. In fact, our legislation against age discrimination differs in that it is not targeted at protecting the older worker and claims can just as easily be brought by a worker treated less favourably due to their youth.
However, if older males were clearly targeted as a group within the business, the risk that an employer could face a claim would be obvious. If it was discrimination though, could it be justified? Age discrimination, direct or indirect, will not be unlawful if justified in the sense that it represented a proportionate means of achieving a legitimate aim.
What could be a legitimate aim? It has been said that the strategy behind the Cabinet shake-up is for the Conservative Party to make itself look more representative of society before the election. However, an employer defending an age discrimination claim is unlikely to get very far with that argument.
In business, the need to make cut backs is frequently cited as the reason for a reorganisation. This, like the Government reshuffle, will in most cases lead to redundancies or employees being offered different roles that they could regard as demotion. However, an employer will need to take care that when carrying out any redundancy selection process it is able to show that the process, is not tainted by discrimination.
In one recent redundancy case*, an employer was not only found guilty of unfair dismissal but also age discrimination where the claimant had been forced to move to a different office and had been given little work. This was due to the “perception .. that she was too old for the team” the employer was trying to put together. In fact, the whole selection process was described as unfair as being “designed solely” for the purpose of making the senior member of the team redundant.
In terms of employment law, the desire to be a younger team together will not be regarded as a defence to age discrimination.
Would the appointment of so many women to the Cabinet give grounds for sex discrimination claims? It might appear so, but could the Government claim it was just promoting gender diversity? This would be in line with guidance on Corporate Governance. The top 100 FT listed companies have a target of getting at least 25% of their Governing boards made up of women by 2015. Earlier this year, it was reported that this target may be reached as the percentage of newly appointed women increased dramatically over the last 12 months. One possible reason for this was a change to company legislation implemented last year that required all quoted companies to disclose the proportion of women on the board, in senior executive positions, and female employees in the whole organisation over the past year on their Board.
*Swinburne & Jackson LLP v Simpson UKEAT/0551/12/LA