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Legal view: What are the 4 types of age discrimination in pharmacies?

“Silence from the recipient of the comments is not treated as consent”

Pharmacy managers must be mindful of the four types of age discrimination – harassment, victimisation and direct and indirect discrimination – say Thorrun Govind and Paul Spencer

The challenges and pressures of COVID-19 have brought healthcare teams, including those in pharmacies, closer together – albeit socially distanced. Last year over 1.7 million flu vaccines were administered under the community pharmacy flu vaccination service. This year, teams are well on their way to surpassing that.

Fostering good relationships between pharmacy employees is vital to the success of such services, and in creating a pleasant working environment.

Pharmacy managers should be mindful of the employment law they may have to navigate as they juggle other responsibilities. They shouldn’t just be doing this just because it’s the law, but also because it is the right thing to do. Recently, the profession has been having some difficult but extremely important conversations about equality and diversity.

Under the Equality Act 2010, age is one of nine areas of life regarded as a protected characteristic. Age discrimination is when an individual is treated unfavourably because of their age or because they are part of a particular age group. Younger staff as well as older staff are at risk of age discrimination.

There are four main types of discrimination under the Equality Act:

●      Direct discrimination.

●      Indirect discrimination.

●       Harassment.

●       Victimisation.

Direct discrimination, when someone is treated worse than another person in a similar situation because of their age, may be easier to spot. Younger pharmacists may have experienced discriminatory comments from patients, in the presumption that an older member of the team is the pharmacist, and therefore more knowledgeable.

Recently, a pharmacy worker who was “mocked” by younger members of her team was awarded £15,000 by an employment tribunal after winning her claim for age and disability discrimination.

Indirect age discrimination can be more subtle. This is the application of a policy or way of working that applies to everyone but puts people of a certain age group at a disadvantage and that policy or practice cannot be justified.

An example of a potentially problematic action would be a job description for a pharmacy dispenser that requires someone with at least 10 years of experience. It would be difficult to show that this requirement is for necessary reasons. Therefore, it is likely to be discriminatory towards recent graduates who may be eager to apply for the role.

Harassment is defined as “unwanted conduct” related to an individual's age. It must have the purpose or effect of violating a person’s dignity or creating an “intimidating, hostile, degrading, humiliating or offensive environment” for them, the Equality Act says. It can include bullying, nicknames or threats.

While many pharmacy teams might engage in workplace ‘banter’ as they navigate piles of prescriptions and stock supply issues, it is very important to be mindful of the content of such banter.

Pretending an older employee is deaf, or teasing a colleague by saying that they are too young to know any better, may not be as harmless as first appears. To say the behaviour was not meant to be harassment or that the comments were banter will provide no defence where the conduct was unwanted. Silence from the recipient of the comments is not treated as consent to such comments.

Treating an employee badly because they have complained of discrimination is victimisation. This is when an employee suffers “detriment” – a kind of harm – from another employee because the former has made an allegation of discrimination, or supported or given evidence concerning a complaint of discrimination. The detriment includes disadvantage, damage, or loss.

Justifiable discrimination?

Less favourable treatment because of age is allowed where it can be objectively justified. With regards to direct discrimination, the employer must prove its action concerning an employee is “a proportionate means of achieving a legitimate aim”, the Equality Act says. A legitimate aim could be to ensure that all age groups acquire essential skills and experience. Giving a younger member staff a temporary promotion would be a way to achieve this aim, even if an older person may be better qualified.

The practice or policy can only have a legitimate aim if it is the least problematic way to achieve the goal and short-term arrangements, such as a temporary promotion, achieve this. However, a policy of only giving promotions to younger staff would go too far.   

With indirect discrimination, the employer must show that the policy or practice which disadvantages a particular age group is also a proportionate means of achieving a legitimate aim. With both direct and indirect discrimination, saving money alone is unlikely to be considered a sufficient justification.

Fostering a good working environment

To foster a good working environment, managers and employers can:

  • Create an action plan and policy of how they will encourage equality and diversity and try to stop discrimination in the workplace.
  • Implement regular equality and diversity training to promote a positive culture.
  • Ensure that recruiters are aware of what should and should not be discussed during an interview.
  • Provide regular appraisals, as a lack of appraisals runs the risk of employees being unable to air their grievances and concerns. Leaving issues festering between members of the team isn’t conducive to a positive environment.

Thorrun Govind is a pharmacist and trainee solicitor at Hempsons law firm, where Paul Spencer is a partner and expert in employment law

For further information contact [email protected] or [email protected]

This article is for information purposes only and should not be relied on as legal advice. Neither the authors nor Hempsons will be liable for losses arising from reliance on the information in this article.

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