Y is there a problem? - as published in New Law Journal

Jessica Corsi examines how attitudes towards discrimination in the workplace are evolving

In Brief

• Generation Y employees have the most negative attitude towards older and flexible workers and are more likely to feel they have experienced sex discrimination.
• Micro-businesses are the least discriminatory workplaces, while medium-sized businesses struggle with both sex and age discrimination.

“Age before beauty”, as the well-known saying goes, used to be used to teach children that older people should be given precedence over the younger and, by implication, more attractive. Recent research carried out by Doyle Clayton Solicitors on how employees view their older colleagues and those who work part-time reveals that “age before beauty”, in that sense, is not a saying that applies in many workplaces. In fact, the research on how employees view their older colleagues and those who work flexibly suggests that Generation Y employees (those in their 20s and early 30s) have the most negative attitudes towards older workers and those who work part-time or from home. A case of “beauty over (older) age”, then.

Another popular saying, “small is beautiful”, is borne out, however, by another aspect of the research which considered how a business's size can affect the level of discrimination experienced by workers within it. This revealed that micro-businesses (those with one to nine employees) are the least discriminatory places to work.

The findings in Doyle Clayton's Age Before Beauty? report were based on interviews with 1,000 employees across a range of organisations. The report's key findings include:

Generation Y

• Generation Y have the most negative attitude towards flexible working and older workers;
• Generation Y are much more likely to feel they have experienced discrimination because of their gender—whether positively, in their favour, or negatively to their detriment; and
• Generation Y are more likely to consider that their colleagues' ability to work flexibly comes at their expense.

Business size

• Micro-businesses are the least discriminatory places to work. 97% of employees in micro-businesses do not consider they have experienced sex discrimination and 96% feel that age discrimination has never been an issue;
• In medium-sized (50-249) and larger businesses, 10% of employees felt they had been held back due to their sex (compared to only 1.3% in micro-businesses and 4.5% in small businesses (10-40 employees));
• In medium-sized and large businesses over 20% of employees had witnessed discrimination on grounds of age, whereas in micro-businesses virtually no employee interviewed had witnessed it; and
• 20% of employees at medium-sized and large businesses view colleagues who work flexibly as less committed, whereas employees at micro-businesses were consistently more positive.

What seems to be the problem?

Generation Y's attitude to flexible working

Generation Y, whose members were born between the early-1980s and early-2000s, was the first to learn to use technology in day-to-day life. Its constituents are used to different ways of working. They are also very much of an age when people start families. In this light, the report's finding that Generation Y has the most negative attitude towards people who work part-time or from home is very surprising. It can be explained perhaps by the view that Gen Y is the “have it all” generation. Its members want all the advantages of flexible working for themselves but do not want others to have it if it creates extra work for them.

Until 30 June 2014, only parents and those with caring responsibilities could request flexible working. The right was extended to all employees from that date, so any employee can now request flexible working for any reason. Employers have an obligation to consider such a request reasonably and can only refuse on certain statutory grounds related to the conduct of the business. As the make-up of the workforce working flexibly extends more widely, we may see a gradual, positive change in attitudes, but for now employers should not assume that initiatives to increase flexible working will always be welcomed by Generation Y. They may feel that other people's flexibility comes at their expense.

Generation Y's attitudes to older workers

Legislation prohibiting discrimination because of age has been in place since 2006 and the good news is that the research revealed that 82% of employees surveyed had not witnessed age discrimination. Yet worryingly the research also revealed that Generation Y is most likely to harbour negative views about the value of older employees. This is of concern because members of Generation Y often hold supervisory and junior management roles and are frequently involved in making recruitment and promotion decisions and in appraising staff, areas where age discrimination can commonly occur. They may therefore be exposing their employer (as well as themselves) to the risk of an age discrimination claim.

Employers need to consider how best to reduce the risk of their being liable for age discrimination by their employees. They have a defence to an age discrimination claim if they can show that they took all reasonably practicable steps to prevent discrimination occurring at the hand of their employees. Employers should therefore be addressing this issue in the form of robust policies, training, assessment, mentoring and coaching to ensure that those in supervisory and management roles understand and comply with discrimination laws.

Generation Y & sex discrimination

The Age Before Beauty? report's findings that Generation Y are much more likely to feel that they have experienced sex discrimination both to their advantage and their detriment suggests one of two things: either they are more likely to experience sex discrimination than their older colleagues or their perceptions are different from those of their colleagues (this is interesting in itself, considering the findings about their own attitudes towards older workers discussed above). Whichever is the case, the report's underlying finding is that Generation Y employees consider themselves as being much more attuned to alleged discrimination than their older colleagues.

This is important. It may explain why many men are expressing reluctance to take up the new shared parental leave which becomes available in April 2015. Shared parental leave gives both parents the opportunity to share up to 12 months of leave in relation to the birth or adoption of a child. Both parents will be able to take time off at the same time if they choose or take leave consecutively or even in intermittent blocks if their employer agrees. This differs from the current system where a father/co-adopter is only able to take additional paternity leave if the mother/main adopter returns to work from maternity or adoption leave.

The new system is intended to enable fathers to play a greater role in their children's upbringing and yet if Generation Y fathers fear that taking shared parental leave will be detrimental to their careers, then they may well decide not to take it. Not only will this mean that the government's aims will not be met, but also that women, who will continue to bear the bulk of responsibility for their children's upbringing, will continue to be disadvantaged in both their career and pay.

Small is beautiful

Discrimination—a challenge for medium-sized businesses

The Age Before Beauty? report revealed a correlation between business size and levels of discrimination experienced and witnessed. One of the biggest surprises was that employees of micro-businesses are far less likely to feel that they have experienced either sex or age discrimination than employees in other organisations. Medium-sized businesses, on the other hand, seem to struggle with both sex and age discrimination when compared with the smallest and largest organisations.

While it is unclear why there is such a notable difference between micro-businesses and others, one explanation is that their owners take a more hands-on approach to decision-making, recognising that a happy, strongly-motivated workforce is vital to the success of the business. The message here for larger employers is that engagement with staff works.

While very large organisations (500+ employees) will benefit from well-resourced HR departments and lots of systems, processes, training and support, many medium-sized businesses fall between these two stools. Weak and inexperienced managers can go unsupported and make decisions based on personal prejudices without realising the consequences, giving rise to discrimination and the risk of claims. Medium-sized businesses in particular should prioritise diversity awareness training, sourcing external support from lawyers or HR consultants where they do not have expertise in-house. External advisers can also assist with handling grievances and disciplinary issues to reduce the risk of discrimination.

Attitudes to flexible working

Micro-business employees also fared best when it came to attitudes to colleagues who work flexibly. 80% of micro-business employees were positive about the level of commitment shown by people who work from home frequently, compared to only 60 to 70% of employees in businesses of other sizes. Employees in micro-businesses are also more positive towards those who work part-time and towards full-timers with young families.

This is of concern for SMEs and larger businesses. Negative attitudes are likely to manifest themselves in less favourable treatment, meaning that flexible workers may quit work resulting in a loss of talented people and consequential recruitment and training costs. To counter negative attitudes, businesses need to be more pro-active in publicising their flexible working policies and advertising the benefits of flexible working for both the business and staff. It is important to ensure that flexible working is supported properly so that one person's flexibility is not viewed as being at another's expense.

Should micro-businesses be exempt from employment regulations?

The Age Before Beauty? report revealed that employees at micro-businesses are much less likely to perceive sex or age discrimination, whether in relation to themselves or others. Is there a case therefore for exempting micro-businesses from regulation?

In the 2011 Budget, the government announced that micro-businesses and start-ups would be exempt from new domestic regulations for a period of three years, in order to reduce the burden of regulation. In the event, micro-businesses have been covered by most new regulations introduced since, with the government saying this is because its new regulation has reduced, rather than increased, the burden on business. There are two notable exceptions. Compulsory equal pay audits are being introduced from 1 October 2014. Employment tribunals will order employers who lose pay discrimination claims to carry out an equal pay audit in order to identify any differences in pay between men and women and the reasons for the difference. However, micro-businesses will be exempt. In addition, special provision has been made for micro-businesses involved in business transfers and service provision changes. From 31 July 2014 they have been permitted to inform and consult about the transfer directly with employees, where there is no recognised trade union or there are no appropriate representatives in place.

The report concludes that micro-businesses should not be exempt from employment laws. Employment regulations and the prospect of penalties for breach appear to be effective in preventing discrimination in micro-businesses, where they have failed elsewhere. In addition, if discrimination and family friendly laws did not apply to micro-businesses (including regulations giving parents maternity and paternity entitlements, for example), responsible employers would be likely soon to find themselves undercut by unscrupulous businesses removing entitlements in order to cut costs.

This article, written by Jessica Corsi, was originally published in New Law Journal at  http://www.lexisnexis.com/uk/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T20639824638&format=GNBFULL&startDocNo=0&resultsUrlKey=0_T20639824642&backKey=20_T20639824643&csi=280276&docNo=1&scrollToPosition=0