When HR professionals are dealing with allegations of misconduct, fairness is often easier to articulate than it is to apply.

Under the unfair dismissal framework set out in the Employment Rights Act 1996, the focus is not on whether the employer reached the ‘correct’ decision when dismissing an employee for misconduct, but whether dismissal fell within the range of reasonable responses available to a reasonable employer. The employer must show that their decision was both substantively and procedurally fair.

In assessing substantive fairness, tribunals consider all the circumstances of the case. Traditionally, those circumstances might include length of service, disciplinary record, remorse, provocation, personal circumstances and consistency of treatment. Should age now join that list?

The argument in favour is increasingly difficult to ignore. Many individuals join the workforce at 18 but scientific thinking has moved away from the notion that an individual becomes fully mature on their 18th birthday. The prefrontal cortex, responsible for long-term planning, impulse control, and risk assessment, is one of the last areas to mature – and continues to develop until at least the age of 25. Sentencing guidance in the criminal courts already recognises this. The Sentencing Guidelines were amended last year to include the statement that “young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

  • evaluate the consequences of their actions
  • limit impulsivity
  • limit risk taking”.

The criminal justice system accepts that age and maturity may affect responsibility, and should be reflected in sentencing, even where the individual is legally an adult.

Should employers adopt the same approach to misconduct in an employment context and introduce a policy of considering whether a young employee’s misconduct was influenced by immaturity, impulsiveness or inexperience?

A 19-year-old who posts an ill-judged comment on social media, engages in workplace banter that crosses a line, or exercises poor judgment in a customer-facing role may not present the same level of culpability as a more experienced colleague who engages in identical conduct. If tribunals are required to consider all the circumstances of the case, why should maturity not form part of that assessment?

At the other end of the age spectrum, such a consideration already exists. Long service is acknowledged as a potentially relevant factor when considering the appropriate sanction in a misconduct case. In Strouthos v London Underground, the Court of Appeal held that the EAT had been wrong to decide that having 20 years’ service and no previous warnings was not relevant when the employer came to dismiss. Arguably, a young employee’s lack of workplace experience and underdeveloped prefrontal cortex may be every bit as relevant as an employee’s long service or previously unblemished record.

However, importing concepts from criminal sentencing into workplace discipline is not without risk.

Age discrimination

The most obvious concern is age discrimination. Older employees may reasonably ask why a younger colleague has avoided dismissal for conduct that would have resulted in a harsher sanction for them. Given that age is a protected characteristic under the Equality Act 2010, differential treatment based expressly on age creates litigation risks. Employers would need to justify any distinction by reference to legitimate aims and evidence rather than assumptions or stereotypes about younger workers.

Consistency and unfair dismissal

There is also the well-established principle of consistency. Employment tribunals have long recognised that employers should strive for consistency when imposing disciplinary sanctions. While consistency does not require identical outcomes in every case, significant disparities in treatment can undermine the fairness of a dismissal. If age becomes a recognised mitigating factor, employers may find themselves facing difficult questions about where to draw the line and how to explain differing outcomes for employees who engaged in similar misconduct.

Parallels with other neurodevelopmental issues

There is also an interesting parallel with the growing recognition of the relevance of neurodivergence as a factor in workplace disciplinary processes. Many employers now accept that conditions such as autism, ADHD or other neurodevelopmental conditions may be relevant when assessing conduct, culpability and appropriate sanctions.

Although the issue is always fact-sensitive, neurodivergence is, in many cases, held to be a disability under Equality Act 2010. This adds an additional dimension for employers considering misconduct allegations in this context. In Borg Neal v Lloyds Banking Group an employee who was dismissed for using the N-word in full during EDI training and who claimed that his conduct was due to dyslexia (and an inability to quickly reach for the ‘redacted’ word) was awarded a six-figure sum for unfair dismissal and disability discrimination. Where an employee’s neurodivergence amounts to a disability, the duty to make reasonable adjustments is engaged (both in terms of process and sanction) as is a requirement not to treat the employee unfavourably for a reason arising from their disability (unless justified).

And herein lies the key difference. Being young and not having a fully developed adult brain does not, in and of itself, provide access to this additional legal protection or place employers under a positive obligation to make adjustments.

A question of balance

The challenge for employers is one of balance. Age should rarely be a trump card that excuses misconduct. Yet nor should it be treated as irrelevant. The safer approach may be to focus less on chronological age and more on maturity, experience, judgment, insight and the wider circumstances of the case. Those factors are capable of forming part of a holistic fairness assessment without creating a blanket policy of leniency towards younger workers.

As workforce demographics continue to evolve, employers may increasingly find themselves grappling with a question the criminal justice system has already started to confront: not whether young adults are responsible for their actions, but whether, given their ongoing neurological development, they should always be judged in exactly the same way as everyone else.