Worker Entitled to a Fair Investigation (in the UK)

justice-scale-761665_1In the United States, so-called workplace investigations can be little more than pre-trial preparation for employers intent upon building a record to justify dismissing a troublesome worker.

It is refreshing to note a recent  decision by the London-based Employment Appeal Tribunal (EAT)  finding  a breach of an implied term of trust and confidence where an agency’s Human Resources Dept. interfered in the outcome of an investigation of employee misconduct.

In Ramphal v. Department for Transport,  a manager  was investigating alleged misconduct by an aviation compliance inspector, who allegedly filed a false expense report.  The manager’s initial report concluded that any abuse was not deliberate. After the manager sought advice from HR, he switched his recommendation that the employee receive a written warning for misconduct to a recommendation that the employee  be summarily dismissed for gross misconduct.

The EAT said the lower court erred when it failed to determine whether HR had exerted “improper influence” over the manager’s decision to dismiss the worker

The EAT said a worker facing disciplinary charges and a dismissal procedure “is entitled to expect that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.”

According to the  EAT:

“… an investigating officer is entitled to call for advice from human resources; but human resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction….. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct”.

In the United States, most workers who do  not belong to unions or receive the protection of an employment contract can be fired for almost any reason – without any cause –  as long as the reason doesn’t break an actual law (i.e. discrimination)  or a narrowly defined public policy (i.e. protection for whistleblowers).  There is no legal requirement that employers treat workers with respect, dignity and fundamental fairness.  Of course, employers who are not fair  risk significant liability if the worker later files a lawsuit alleging a violation of the law, such as a race or sex discrimination lawsuit.

The Employment Appeal Tribunal is a superior court of record in the United Kingdom that hears  appeals from Employment Tribunals in England, Scotland and Wales.

Report: Most Women’s Careers Die at 45

While the U.S. continues to ignore the on-going epidemic of age discrimination here, a new report in the United Kingdom posits that ageism and sexism combine to effectively end women’s careers at the age of 45.

Men continue to progress until around age 55, when they are written off by employers  as being “past it.”

These are some of the results of a major report by economist Ros Altmann, who was appointed last year by the United Kingdom’s Department for Work and Pensions Minister to serve as the U.K.’s  Business Champion for Older Workers.

Altmann told the British Daily Mail and Independent newspapers that senior human resource professionals report that women’s career progression in most companies stops around the age of 45.  She said that nearly half the growth in female employment since the recession has been in low-paid, part-time work, mainly  clerical, caring and cleaning work.  Here are some other findings:

  • Older workers with young bosses tend to face the worst age discrimination.
  • Employers wrongly assume that older workers are less familiar with computer technology and are unable to learn.
  • Women face an extra layer of discrimination because employers want young, female staff who “look a certain way.”

Altmann recommends the government threaten  job recruitment firms with penalties unless they do more to prevent age discrimination. She said all job advertisements should clearly state the application is open to everyone regardless of age. She also recommends a national “confidence” campaign for discouraged older workers and proposed that companies offer “mature” apprentice programs.

The U.S. Slumbers on … 

The U.K. initiative stands in sharp contrast to the complete lack of action in the United States to combat blatant and epidemic age discrimination in the workplace.

Indeed, President Barack Obama made things incrementally worse  when he signed an executive order in 2010 establishing the Pathways “Recent Graduates” program that allows the federal government to discriminate in hiring against older workers. Why should private sector employers comply with the Age Discrimination in Employment Act if the federal government won’t?  And the Obama administration is currently sponsoring a White House Conference on Aging, which has totally ignored pleas to address the problem of age discrimination.

Meanwhile, many job applicants must fill out on-line applications which require disclosure of age-related information that allows companies to screen out older workers.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show there is far less protection from age discrimination than other types of illegal discrimination in the United States because the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court.

Altmann  notes that by 2022, there will be 700,000 fewer people aged 16 to 49 in the UK  but 3.7 million more people aged between 50 and the state pension age. “If the over-50s continue to leave the workforce in line with previous patterns, we would suffer serious labour and skills shortages which could not be filled by immigration alone,” she said.

U.S. Sleeps While U.K. Tackles Age Discrim.

While the U.S. ignores the problem, the United Kingdom Monday announced a “world-leading new approach” to tackle age discrimination in employment there.

UK Employment Minister Esther McVey said the program will battle long-term unemployment among over-50 job seekers by providing them with training in resume and interview skills, the internet and social media. In addition, she said experts would provide older workers with “career reviews” to identify skills from previous jobs and  training needs.

The program will initially hire seven “older worker champions” across the UK who will focus on “going out to smaller and medium-sized businesses to ensure they recognise the benefits of hiring older workers” by challenging outdated stereotypes about older workers.

Long-term unemployment  in the UK fell by 16 percent overall in the past year – but joblessness among workers over the age of 50 fell by only 3.5 percent.   Almost  half (47 percent) of all unemployed people between 50 and 64 in the UK have been out of work for a year or more – this compares with 33 percent for those aged 18 to 24.

“The plight of unemployed older workers has gone under the radar for too long. There’s something fundamentally wrong with so many skilled and experienced people finding themselves locked out of the workplace simply because of their age,” McVey told BBC Radio 5 live.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that older workers in the United States  face blatant and unaddressed age discrimination in hiring but no one seems to care. The problem is hidden here behind terms like “long term unemployment” and “early writing.”

I show that the U.S. government has not only failed to address the problem but actually made it incrementally worse in 2010 when President Barack Obama signed an executive order permitting federal agencies to bypass older workers and hire “recent graduates.” Meanwhile,  the U.S. Congress has failed for five years to pass the Protecting Older Workers Against Discrimination Act, which would make it slightly easier for plaintiffs to win age discrimination lawsuits.

Epidemic age discrimination in the United States has devastating consequences for older workers, who are forced to spend down their savings until they age into a  financially insecure retirement where they suffer a 25 percent cut in Social Security benefits for the rest of their lives.

There are many facets to the problem of age discrimination in employment in the United States, not the least of which is that the problem seems to be invisible to federal policy makers.

The Age Discrimination in Employment Act of 1967 was weak and riddled with loopholes to begin with and has been eviscerated by the U.S. Supreme Court.  Older workers today are literally second-class citizens under U.S. law, with far less protection than individuals who are discriminated against on the basis of race, sex and religion.

And no American group has emerged to effectively advocate for older workers.

The White House is planning a conference on aging in 2015. In recent months, I have made repeated efforts to contact the executive director of the conference, Nora Super, to urge her to address the problem of age discrimination in employment. I even sent her a copy of my book.  I’ve received absolutely no response.