Sir Menzies and the law of age discrimination

Out-Law Analysis | 16 Oct 2007 | 6:52 pm | 2 min. read

OPINION: Barely a year since the British Government brought the age discrimination laws into force, it is perhaps ironic that the political arena is home to some of the most blatant age discrimination to date.

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The front pages of today's newspapers announced the resignation of Sir Menzies Campbell. He has since told the BBC that the media's obsession with his age and leadership made it impossible for him to continue as leader.

Throughout the recent Liberal Democrats' conference in Brighton, the press persistently referred to Sir Menzies' age. Sir Menzies is 66 and cartoonists routinely portrayed him with a Zimmer frame or a wheelchair. While David Cameron has been characterised as a youthful, fresh-faced leader, the press gave the clear impression that Sir Menzies was not 'up to the job' as a result of his age.

The portrayal of a public figure in this manner by the press will in all likelihood remain unchallenged. Whilst the UK's age discrimination laws do cover Members of Parliament, they do not extend to the comments and opinions of the press, and it seems very unlikely that Sir Menzies will litigate.

However, if Sir Menzies worked in a 'normal' workplace, the risk of a claim would be high. Any employer who exposes an employee to comments of a discriminatory nature on an ongoing basis could face a claim. An employee forced to resign because of his age would likewise have a claim.

The Age Regulations, in force since October 2006, look to prevent age discrimination within the workplace and shift attention from the age of the employee to their performance and capability. 

Not only do the Regulations prohibit discrimination on the grounds of age, they also cover perceived or apparent age as well. So, for example, teasing someone because they look older or younger than their actual age is also unlawful. If the taunting experienced by Sir Menzies was replicated in a 'normal' working environment his employer could be exposed to a big claim for compensation.

The comments directed at Sir Menzies are a form of harassment. Harassment is not defined by the intention of the perpetrator but the effect that it has on the individual. As a result, harassment can include a general culture in which ageist jokes, comments or birthday cards are permitted, or where individuals are subject to harassment from third parties such as customers or suppliers. If cartoons poking fun at Sir Menzies' age were passed around the workplace, this could create a hostile environment for older employees.

In most cases it is the employer who will be sued, although individuals can also be joined as parties to discrimination complaints. The employer can be held responsible for the acts of its employees especially if it can be shown that no action or insufficient steps were taken to prevent discrimination. Employers should at the least introduce a diversity policy and training to cover age discrimination. 

One thing is for sure: we cannot carry the opinions of the press into the workplace. Let them in and the risk of litigation looms.

Kirsty Ayre is a partner with Pinsent Masons, the law firm behind OUT-LAW.COM, and a specialist in employment law.