Age Discrimination Against Senior Executives: Are you Being Managed Out?
Senior executives are rarely told openly that they are considered too old for their role. Age discrimination is usually much less obvious.
For instance, a previously valued director might suddenly be described as resistant to change, or their experience becomes ‘old-fashioned thinking’. Important clients, projects and responsibilities are gradually transferred to younger colleagues. Performance concerns then appear, followed by a restructure, settlement proposal or questions about retirement.
Not every workplace decision involving an older executive is discriminatory. Employers can address genuine performance concerns, reorganise their businesses and appoint the strongest candidate for a position. However, they cannot use these processes to disguise less favourable treatment because of age.
What Does Being ‘Managed Out’ Mean?
Being managed out is not a legal claim in itself. It is a phrase often used when an employer appears to be creating the conditions for someone to leave rather than addressing its real intentions openly. For a senior executive, this could involve:
- Being excluded from important meetings
- Losing decision-making authority
- Having key clients or projects taken away
- Receiving unexpected or vague criticism
- Being given unrealistic objectives
- Getting overlooked for future opportunities
- Facing repeated questions about retirement
A single event may have an innocent explanation. Concern is more likely to arise when there is a pattern of unfavourable behaviour.
When Does Managing Someone Out Become Age Discrimination?
Age is one of the protected characteristics covered by the Equality Act 2010 (EqA). The protection applies to people of all ages, although many claims involve older employees who believe they have been disadvantaged in favour of younger colleagues.
Section 13 of the EqA states that direct discrimination occurs where one person treats another less favourably ‘because of a protected characteristic’. For example, age discrimination could arise if an employer removes an executive because it wants ‘new energy’ or transfers their responsibilities to someone younger.
Age discrimination can also be indirect. This might happen where an employer applies the same provision, criterion or practice (PCP) to everyone, but it places people in a particular age group at a disadvantage. For example, a promotion rule based heavily on a particular recent qualification could disadvantage older employees. The employer may be able to justify the policy, but only if it can show that it is a proportionate means of achieving a legitimate aim.
Can an Employer Ask When You Plan to Retire?
There is no default retirement age for most jobs in the UK. Employees can usually continue working for as long as they choose, including after reaching State Pension age.
An employer may sometimes have a genuine workforce-planning reason for discussing an executive’s future intentions, particularly where the role is senior, specialist or difficult to replace. However, ACAS recommends having regular discussions with all their workers about future plans and aims, rather than singling out older employees.
Asking repeatedly about retirement, especially during performance or attendance meetings, can place the employee under pressure and could support an age discrimination complaint. An employee does not generally have to answer questions about when they intend to retire. A lawful discussion should make clear that there is no expectation or pressure to leave.
Can an Employer Set a Compulsory Retirement Age?
The former default retirement age of 65 was abolished in 2011. Most employers cannot force someone to retire simply because they have reached a particular age. Although ‘occupational retirement’ can be lawful if the nature of a job requires a worker to be of a certain age or ability in order to perform their role efficiently.
The employer would need to identify a legitimate aim and show that requiring employees to retire at that age is a proportionate way of achieving it. This is a fact-sensitive test. Certain roles may have age requirements because they are physically demanding, but this should not be confused with a general right to remove senior executives because management would prefer a younger leadership team.
Can Performance Management Be Used to Manage Out an Older Executive?
Employers are entitled to address genuine performance concerns, regardless of an employee’s age. A fair process should identify specific concerns, explain the required standard and give the executive a reasonable opportunity to respond and improve. Standards should also be applied consistently across comparable roles.
In age discrimination cases, employment tribunals would look more closely at a performance process where:
- The criticism is vague or unsupported
- Expectations have changed without warning
- Targets are unrealistic
- The improvement period is unusually short
- Similar issues with younger colleagues are handled differently
- The outcome appears to have been decided in advance
- Retirement was raised shortly before the process began
The evidence during this period can be important. Performance reviews, changing objectives, bonus assessments, emails and meeting notes help show whether the concerns were genuine. A comparison with younger executives can also be relevant, particularly where similar performance issues were dealt with informally or did not affect their responsibilities.
Can a Restructure Hide Age Discrimination?
A business may genuinely need to reduce costs, change its structure or remove a role. However, the way it selects individuals must not be influenced by age.
Questions can arise where an executive’s position is removed, but a younger colleague takes over most of the same responsibilities. The employer may say that the new role requires different skills, but it is reasonable to examine whether those differences are genuine. Selection criteria may also create risk. Subjective qualities such as ‘energy’, ‘future potential’ and ‘cultural fit’ can allow age-related assumptions to influence scores.
A genuine restructure does not prevent an age discrimination claim where the selection process or appointment decisions were discriminatory.
Is there a Minimum Length of Service to Claim Age Discrimination?
No minimum length of employment is required to bring an age discrimination claim to the employment tribunal. This differs from other claims, which are generally subject to a qualifying service requirement. Age discrimination protection also applies to employees, workers, former workers and job applicants, depending on the circumstances.
Compensation for unlawful discrimination is not subject to a statutory cap either. However, this does not mean compensation is automatically unlimited in practice. The amount awarded will depend on the losses caused by the discrimination and the available evidence. It may include financial loss and compensation for injury to feelings.
Speak to an Employment Law Specialist About Age Discrimination
Being managed out of a senior role can affect your reputation and future career, particularly when an employer has used performance or restructuring as a reason for your departure. If you need assistance with an age discrimination claim, Damian McCarthy is here to help. He will review the full sequence of events and the legitimacy of the dismissal.
With decades of experience, Damian advises executives and senior professionals on age discrimination, performance management, redundancy and unfair dismissal. He can help you assess the available evidence, understand your legal position and decide how best to protect your interests. Please contact Damian if you are concerned that you are being managed out of a senior role because of your age.
