Age discrimination in thew workplace

Is has been said that age is just a number -  but in the workplace it can be the source of some serious and costly problems.

No employee should be treated unfairly at work as a direct result of their age.

But we have heard of stories and seen cases in which both older and younger workers have alleged they have been subjected to unfavourable treatment just because of their age.

Whether it is making insulting or offensive comments, overlooking someone for promotion or excluding them from activities and doing so based on how old the employee is, it can be unlawful.

Age discrimination is when you are treated differently because of your age in one of the situations that are covered by the Equality Act 2010[1 cited 7.11.23]

The treatment could be a one-off action or as a result of a rule or policy based on age. It does not have to be intentional to be unlawful.

If an employee or job applicant makes a successful claim for age discrimination to an employment tribunal, there is currently no cap on the compensation that can be awarded for financial loss or personal injury.

With people now feeling forced to have to work longer, the number of older workers is on the rise.

Research shows British workers are increasingly likely to work into their 70s because they have been left with no choice but to do so as a result of the cost of living crisis[2 cited 7.11.23]

Most of the employees working beyond the age of 70 are male. However, there has been a significant increase in the number of women, which is up 66 per cent since 2012.

In April to June 2022, the number of people aged 65 years and over in employment grew by a record 173,000 on the quarter to just over 1.4 million, which is also a record level[3 cited 7.11.23]

It does mean employers have to give careful consideration as to how best to accommodate and support older workers. In failing to do so, an employer can be made to pay a very high price.

An 89-year-old former medical secretary was awarded nearly £200,000 after her dismissal was found to be unfair and ‘tainted by discrimination’[4 cited 7.11.23]

She claimed the decision to dismiss her was based on her age and that there had been unpleasant remarks made about her age and health – specifically, questioning her ability to walk the length of the building and her ‘frailty.’

Traditionally, age discrimination is perceived as affecting older workers, but there is evidence to demonstrate that younger workers also face similar issues.

In recent years the term ‘snowflake’ has been used to describe and ridicule millennial employees.

The CEO of an American marketing agency even introduced a ‘snowflake test’, which was full of questions designed specifically to weed out what was said to be ‘whiny, entitled millennials’[5 cited 7.11.23]

The test that saw applicants quizzed on their attitude to bullying, sick leave, criticism, even coffee choices, went viral after details about it emerged.

In the UK, in recent times we have seen a number of cases for age discrimination brought by younger employees.

A 20-year-old trainee hairdresser lost a claim, that included age discrimination, following her dismissal from a salon after a colleague told her to ‘grow up’ and “pull herself together’ while she was being ill in the bathroom[6 cited 7.11.23]

The tribunal concluded that none of the comments made amounted to age discrimination as they could have been applied to a person of any age.

And last week, a 39-year-old casino waitress who was told to 'grow up' after rowing with a colleague lost her claim, which also included age discrimination[7cited 7.11.23]

So, what is age discrimination?

Age is one of nine protected characteristics in the Equality Act 2010, which means an employee is protected against discrimination because of their age[8 cited 7.11.23]

No minimum length of employment by an employee is necessary to claim age discrimination.

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

Direct discrimination

Happens when someone treats you worse than another person in a similar situation because of your age.

Indirect discrimination

Happens when an organisation has a particular policy or way of working that applies to everyone but which puts people of your age group at a disadvantage.

Harassment

Occurs when someone makes you feel humiliated, offended or degraded.

Victimisation

Is when you are treated badly because you have made a complaint of age discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of age discrimination.

Where age discrimination can happen

It can occur at any stage of employment, which includes from the recruitment process through to the termination of the contract.

A few examples of where age discrimination can happen at work are:

Recruitment - an applicant being rejected because they are either too young or too old, or the preference is for someone from a particular age group  when there is no objective justification for the age requirement.

Pay and benefits – paying an employee less or offering them fewer benefits because of their age, or the use age as a factor in determining pay increases or bonuses when there is not a genuine occupational requirement or a statutory exception for the age difference.

Promotion – overlooking an employee for promotion because of their age, or favouring someone of a certain age group when there is no objective justification for the age criterion.

Harassment and bullying – when an individual is subjected to offensive or derogatory comments or behaviour because of their age.

Dismissal – if a worker is dismissed or made redundant because of their age.

When age discrimination may be lawful

Discrimination because of age is only ever allowed where it can be objectively justified.  An employer must be able to show it is a proportionate means of achieving a legitimate aim.

Examples of situations in which discrimination may be allowed:

Occupational requirements

In very limited circumstances, it may be lawful for an employer to insist that employees or job  applicants must be, or not be, a particular age or in a particular age group.

In law, this is known as an ‘occupational requirement’ and can provide the employer with a defence to a direct discrimination claim. But it is not enough for an employer to simply decide they would prefer, for example, not to employ someone because of their age.

Positive action

An employer can take what the law calls ‘positive action’ if it can show reasonable evidence that job applicants and/or employees belonging to an age group:

• Are at a disadvantage, and/or
• Are in low numbers in the organisation, and/or
• Have other needs because of their age

Any employer thinking of implementing any process that selects an employee based on age should always seek legal or expert advice before doing so.

Steps an employer can take to avoid age-related discrimination in the workplace

Implementing an equality, diversity and inclusion policy will set out the organisation’s commitment to preventing and tackling age discrimination, and the responsibilities and expectations of all staff.

Providing training for all staff, especially managers and HR professionals, can help to raise awareness of age discrimination, its impact and consequences, and how to prevent and deal with it

.

Making it clear what employees should do if they experience or witness age discrimination, and ensuring that there is a fair and effective procedure for handling complaints and grievances.

By avoiding age discrimination in the workplace, employers can benefit from a more diverse, productive and motivated workforce, and reduce the risk of legal claims and reputational damage.