Following Sir Tom Jones’ announcement that he was “fired” from The Voice UK, Dan Wilde, Head of Employment at Harding Evans Solicitors, explores age discrimination in the workplace.
Welsh legend Sir Tom has appeared as a coach on the competition since it began in 2012. However, the 86-year-old singer said he had been told he would not return as a full-time coach for the next series. This has led to significant consternation in the Wilde household, with ardent Tom fans threatening a boycott of the show.
Sir Tom said the reason initially given related to insurance costs. He also referred to reports that the programme wanted to “refresh” its coaching line-up and said he had been offered a much-reduced role.
ITV has confirmed Sir Tom’s departure.
We do not know all the circumstances or Sir Tom’s contractual status. It would therefore be wrong to suggest that unlawful discrimination has taken place.
However, his departure raises questions about how older people are treated at work and when business decisions could cross the line into age discrimination.
Under the , age is one of nine protected characteristics. Employers must not treat someone unfairly because of their age, whether they are considered too old, too young or part of a particular age group.
Age discrimination could include refusing to recruit someone, overlooking them for promotion, reducing their responsibilities or dismissing them because of assumptions about their ability to continue working.
There is no longer a default retirement age in the UK. Employers cannot decide that someone should leave their job simply because they have reached a certain age. Decisions should instead be based on their performance, capabilities and the genuine needs of the business.
Sir Tom himself in his announcement about leaving The Voice stated, “So the only thing I know right now is that there’s never a good time to fire an 86-year-old who’s still pretty good at his job”.
Does this suggest that Sir Tom considers that he is being discriminated against?
Unlike most other forms of direct discrimination, different treatment because of age can sometimes be legally justified. However, an employer must show that its decision in considering age was a proportionate way of achieving a legitimate aim. This requires an employer to show that it has a genuine business or operational purpose and that the measure is appropriate and necessary. This is a narrow defence and will be subject to considerable scrutiny by an employment tribunal.
Sir Tom’s position as a television personality may differ from that of an employee in a conventional workplace. In most jobs, an employer could not simply rely on insurance costs or a desire to “refresh” the team.
Clearly employers would never/rarely state they are getting rid of someone because of their age. Case law recognises that it is unusual to find direct evidence of discrimination and employers will not be prepared to admit to discrimination even to themselves. Therefore, many cases rely on individuals will point to facts from which discrimination could be inferred, and in such circumstances the Tribunal require the employer to set out its explanation for the alleged discrimination and establish it had proper reasons for its decision, not tainted by discrimination.
Employers should also be careful about the language they use. Words such as “refresh”, “new blood” or “more energetic” may appear harmless but could suggest that decisions are being influenced by age rather than ability. Certainly, an employer who has provided conflicting explanations for the firing of an older worker to include the need to “refresh” and “difficulties in obtaining insurance” may have a harder task to establish that age was not a factor in its decision making. Conflicting explanations are certainly a factor that might lead an employment tribunal to conclude that there was no adequate explanation for the treatment complained of.
Offering an older worker a reduced role could also raise concerns if their age played any part in the decision.
Ultimately, Sir Tom’s departure is a useful reminder that age should not be a factor in making employment decisions around recruitment, promotion or dismissal. Employers considering dismissal or significant changes to an older worker’s role should , communicate openly, record their reasoning and take legal advice where necessary.
If you need advice on age discrimination, dismissal or making changes to an employee’s role, or any other employment law matter, please . You can also email .
