Many fashion brands, such as Saint Laurent, Celine and Gucci, have taken a more age-inclusive approach to their advertising campaigns in recent years, featuring older models in their 70s and 80s.
But while age-inclusivity has been embraced for consumer marketing, it should also be high on the agenda for fashion employers managing their workforces.
Age discrimination claims have generally been less common than claims based on other protected characteristics under the Equality Act 2010, such as sex, race or disability. However, the recent successful direct age discrimination claim brought by a 56 year old ex-knitwear designer for Superdry has shone the spotlight on this area of employment law.
We highlight the three key age discrimination risk areas below and offer tips to avoid the potential pitfalls.
Whether you recruit staff through online advertising, social media, or print, the content and tone of recruitment language should be age-neutral, positive, and inclusive.
A business that targets the younger end of the fashion market may find this a tricky tightrope, but employers should be on the lookout for unconscious (or conscious) bias towards younger candidates.
Examples of direct age discrimination in recruitment, such as setting an upper age limit for job candidates or using overtly discriminatory language e.g. “youthful enthusiasm” are rare in practice. However, indirect discrimination can be harder to spot at first glance. This would be relevant if some aspect of a recruitment process applied to all candidates but affected one age group adversely compared to another.
For example, advertising for candidates to have at least 15 years’ experience of designing menswear potentially amounts to indirect discrimination. It would be impossible for people below a certain age to meet that experience requirement.
However, it could still be a lawful criterion if the employer can justify it as a proportionate way of meeting a legitimate business aim, such as ensuring that senior management have the necessary skills and breadth of experience.
Practically, existing recruitment methods should be reviewed to ensure jobs are accessible to candidates at all stages of life and adverts and job descriptions do not contain problematic language, images or requirements. Also, advertising through a variety of channels (rather than one social media platform for example) will open up a broader pool of talent.
When it comes to the interview process, discussion should focus on objective information in relation to skillset, capability, and relevant experience, rather than personal information that is irrelevant to the role.
Employment policies & training
Robust equal opportunities and anti-harassment policies are the lynchpin of good employment practice when it comes to ensuring diversity and inclusion in the workplace.
Such policies also set expectations in relation to fashion employees’ behaviour towards their colleagues, so it is important that they are regularly reviewed and kept up to date.
However, policies that are hidden on the intranet offer little practical benefit to employers. The best way to reinforce the inclusivity message, and to create a potential defence to employee discrimination claims (on any protected ground), is to ensure regular and effective diversity training across the whole business.
Despite training, some employees may continue with what they perceive as “banter” with older or younger colleagues. The age discrimination caselaw is rife with examples of stereotypical comments about employees being “set in their ways”, less “agile” than colleagues, or “too demanding” in reference to the millennial generation.
This should receive short shrift from fashion employers, as it will damage an otherwise positive workplace culture and may also expose the business to liability for an age-related harassment claim under the Equality Act. Behaviour which oversteps the mark should be dealt with through internal disciplinary procedures.
Performance review & promotion
Ideally, managers leading performance review processes and making promotion decisions should apply clear, objective, performance criteria in a transparent and consistent way across their team.
A detailed paper trail which supports their decision-making should also be kept. If an employee has not hit the mark in terms of performance, feedback should be prompt and constructive, with a plan for improvement.
In the Superdry case, the employment tribunal held that the decision not to promote the employee to lead designer, and to assess her as a low “flight risk” from the business, was because of her age.
When it comes to promotion opportunities, new roles should be available to all employees who meet the relevant criteria, regardless of age. Older staff should not be overlooked because of any preconceptions about them being close to retirement, or less willing to take on a new challenge.
The preferable approach is to consult all employees about professional development opportunities and their career aspirations.
Conversations about retirement should not be initiated by the employer, but future plans can be discussed if raised by an employee. The aim is for employees to feel valued and fashion employers to access the skills and industry experience that older star performers can still bring to the table.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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