Age discrimination legislation has been around since 2006. Even after it’s consolidation into the Equality Act in 2010, age discrimination still feels like one of the newer categories of discrimination.
Some workplaces still seem to be catching up with the idea that inappropriate references to age in the workplace need to be covered in their HR policies. Age discrimination can land them in the same kind of legal nightmare as inappropriate references to gender or race.
1. ‘Gramps’
Mr Dove was a salesperson and had always been called ‘Gramps’ by younger salespeople. He seemed comfortable with this nickname and even used it when referring to himself.
However, when his key accounts were removed and he was eventually dismissed due to descriptions from customers that he was ‘old-fashioned’ and ‘long in the tooth’, he claimed age discrimination in the employment tribunal, which was upheld.
The employment tribunal decision in Dove v Brown & Newirth Ltd shows that, not only can nicknames related to a protected characteristic be harassment, but they can also be part of the evidence in other types of discrimination claim. Even if the nickname is not meant to be offensive, and appears to be accepted by the individual, it does not mean that it cannot be considered discriminatory.
2. Tribunal Decision
The tribunal ruled that the dismissal was influenced by the customer’s discriminatory and stereotypical views. It concluded that the company accepted these views without further enquiry or question.
When reaching its decision, the tribunal also considered that referring to Mr Dove as ‘Gramps’ suggested that ageist attitudes were tolerated in the workplace.
Mr Dove was awarded a total of £63,391.
The above view of age discrimination is focused on an older worker. However, we should also be aware of age discrimination against younger workers, e.g. casual reference to younger employees being inexperienced.
3. What Can You Do?
So, it may be worth casting a fresh eye around your business and thinking about age discrimination.
- Do you still have a compulsory retirement clause in your contract or handbook?
- Do you have age related entry levels to some jobs?
- Are nicknames used around the workplace that could be considered discriminatory?
- Is there regular banter about specific individuals that would make uncomfortable reading in the cold light of an Employment Tribunal hearing?
In the case above, the company may have found it a useful process to gain full feedback from the clients regarding Mr Dove’s behaviour. They could then have worked with him to readjust his behaviours through their normal performance appraisal process. Simply assuming that his age meant that he could no longer develop or change his behaviours was their key mistake.
If you find that you have an employee whose behaviour is falling short of what is needed, we can help you find a way forward that avoids potential claims of discrimination.
Dealing with a death of an employee can be a tragic and challenging time. Fortunately, it is unlikely to happen that often so you shouldn’t have to deal with it regularly.
When it does, not only have you lost a colleague, but your workforce will need to deal with the shock. It’s important to have clear HR policies in place to make this tough time as straightforward as possible.
It’s never a nice time and your focus is likely to be on many things, so here are a few steps that can help you along the way in dealing with the impact.
1. Actions a Company Should Take Upon Hearing of an Employee’s Death
The first thing you should do as a business is consult the grieving family of the employee and ask if there’s anything that you can do to help. 99% of the time, there isn’t anything you can do. However, it’s a nice gesture to offer and they can feel reassured that they have the company’s support. Remember, it is likely the employee would have been important to a number of people, including your business, so ensure your sympathies come across meaningfully as its ok to be a bit more informal at this time and to have come across as heartfelt and concerned.
Consider sending your condolences following on from contacting the family. Traditionally this is with flower however there are all different alternatives to flowers, such as making a workplace donation to a charity of the family’s choice or circulating a sympathy card. Small gestures like these can really comfort the family during this difficult time by knowing they are in your thoughts.
Informing Staff
Before announcing the news to the business, consult the employee’s family to seek permission to announce the death. Although you will need to announce it at some stage, it’s courteous to ask the family beforehand. Depending on the family and business’s preference, announcing the news would be best done through a gathering in the office if appropriate. Alternatively, the announcement could be in the form of a letter or an email to staff.
Be aware that it’s never easy announcing or receiving this type of news. There will be certain people that would have been closer to the employee than others. However, everyone reacts differently to shock and grief, so offer support to all. Reassure staff that they can and should discuss this with a manager or appointed member of staff at any point. You could also consider creating a ‘quiet place’ where people can go if they are feeling overwhelmed.
If you have a specific Employee Assistance Program in place, this can offer various services such as counselling, therapies and advice to those struggling to deal with the news. If not, direct your workforce to charities like ‘Mind’ who can offer support with bereavement.
When the time comes, allow those who wish to attend the funeral to go, as long as you have appropriate cover for your business and that the family are happy for colleagues to attend. Letting colleagues attend isn’t a legal obligation but it’s a nice form of etiquette for the business to offer. It shows your compassion and respect towards the deceased.
2. Terminating the Deceased Employee’s Employment
Employment Contract
It seems a bit harsh, but you must terminate the deceased employee’s employment the same way if an employee had left your organisation. The employment contract becomes “frustrated” on the date the employee died. Therefore the contractual agreement between the employer and employee has come to an end.
Payroll
For the payroll, you will need to make the day the employee died (or if it was on a weekend the Friday before), their last day of work as if it was their leaving date. The pay should be paid into their bank account as normal as probate will sort out finances in due course. Remember to include any accrued holiday payments.
Pension and Tax
You will also need to contact the pension provider that there pension contributions will cease. Also, notify HMRC of the employee’s passing by sending off a ‘full payment submission’ after processing them as a leaver.
Employee Benefits
If the employee had any benefits such as life assurance, inform the family and let them know how to apply for it. The employee may have nominated certain beneficiaries to receive some or all of their life assurance, so inform those individuals who it relates to. Although this doesn’t bring the person back, it’s a nice benefit for those to receive and may help during the grieving process.
3. Business Activities after the Deceased Employee has Left
Personal Belongings
It’s up to the business when you feel it’s appropriate to remove the employee’s personal belongings. These will need to be returned to the family in due course. Depending on the reaction from the workforce from the death, decide whether it may be more appropriate to remove the belongings once everyone has left the office/ site as this can also cause some distress.
Desks
Depending on where the employee sat or was located, it may be worth moving office desks around if necessary, so someone isn’t staring straight at where the deceased used to sit.
Company Equipment
If the employee had any company property such as a laptop, contact the family members to see if this could be returned. Do leave some time before doing this if at all possible.
Recruitment
When it comes to the recruitment of a replacement, each business is different. Some may need the role filled urgently if the role is considered vital, and others may take more time to recruit so they can have some time to process the death. Nothing is right or wrong so remember to do what is right for your business.
4. Getting Help after the Death of an Employee
Nothing about the death of an employee is nice or simple. It creates a huge shock to everyone who knew them. However, this guidance can assist you during that difficult time, so you are more prepared in case it was to ever occur.
If you need any more information or assistance after the death of an employee, please give us a call on 0203 535 5750 or contact us.