Who will blink first if an executive plays the age card?

Firms worried about how age regulations will affect them could find the main threat coming from an unexpected source – their own senior managers.

Many law firms report getting inquiries from middle-aged executives on how the new discrimination rules could affect their position if they are dismissed or asked to stand down from positions they may have held for several years.

Sally Laughton, is a Employment Law Partner at Andersons in Nottingham, says there’s a growing feeling among many lawyers that senior managers and executives could be the surprise source of many age discrimination claims.

“There are several reasons why this should be the case. You tend to get claims from people who can afford to make them and have the initiative to follow them through. That is certainly the case with senior executives who are usually well paid and resourceful.

“They also have a lot to lose if their firm chooses to dismiss them. They may feel they are unlikely to find a new position with the same level of pay and conditions. It’s therefore in their interests to hold on to their existing position or at least get the best severance package possible.”

Laughton says it could be a case of who blinks first once the age card is played. Few firms would want the publicity that goes with being one of the first companies to face an age discrimination claim, while most executives may not want their careers to end in an acrimonious way.

The result could be a compromise with the executive being able to negotiate a better deal simply by raising the issue, even if there’s no evidence of discrimination. Some firms may even pull back from the brink and leave the executive in place.

Laughton says some companies have already woken up to the fact that they could be put in such an unenviable position and are seeking advice on how to manage such cases.

“The starting point must be to make sure procedures are in place to ensure the firm complies with age regulations. It may also lead to senior executives having to go through annual performance evaluations followed by formal dismissal procedures which have traditionally been associated primarily with less senior staff.

“This is because the firm will usually have to show that there was a valid reason not related to age for dismissing someone. In most cases, that reason will be to do with levels of performance so firms will have to be able to show they have monitored this and expressed their concerns.

“It will be necessary to build up as much evidence as possible before even approaching a senior manager about his potential dismissal.”


Sally Laughton is a Partner in the Employment Law Department at Andersons Solicitors in Nottingham, she can be contacted on 0115 947 0641 or email info@andersonssolicitors.co.uk

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