Age Discrimination

Age discrimination laws^[1] help ensure that you are not denied a job, have an equal opportunity to training/promotions and other less favourable treatment because of age. They also designed to protect you from harassment or victimisation because of your age.

Age discrimination at work.

Age discrimination at work is unlawful in almost all types of employment. All employees and workers of any age are protected from age discrimination including partners of firms, contract workers and anyone in vocational training.

It is unlawful because of age to:

• Discriminate directly^[2] against anyone - unless it can be objectively justified;

• discriminate indirectly^[3] against anyone - unless it can be objectively justified;

• subject someone to harassment^[4] related to age;

• victimise^[4] someone because of age;

• discriminate against someone, in certain circumstances, after the working relationship has ended, unless objectively justified; and

• compulsorily retire an employee unless it can be objectively justified.

All aspects of your employment (or prospective employment) are protected from age discrimination, including your:

• Recruitment and selection;

• employment terms and conditions, including pay;

• promotions and transfers;

• training and development; and

• dismissals.

In some cases different treatment of a worker or employee because of their age can be justified. For example making special provisions for younger or older workers in order to protect their safety and welfare. See the section on objective justification below.

Discrimination because of age covers four areas:

1. Direct discrimination: Treating someone less favourably because of their actual or perceived age, or because of the age of someone with whom they associate. This treatment can only be justified if it is a proportionate means of achieving a legitimate aim;

2. indirect discrimination: Can occur where there is a policy, practice or procedure which applies to all workers, but particularly disadvantages people of a particular age. For example, a requirement for job applicants to have worked in a particular industry for ten years may disadvantage younger people. Indirect discrimination can only be justified if it is a proportionate means of achieving a legitimate aim;

3. harassment: When unwanted conduct related to age has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual;

4. victimisation: Unfair treatment of an employee who has made or supported a complaint about age discrimination.

What is age discrimination

It is against the law for your employer to treat you less favourably than other colleagues at work because of your age, unless it can be objectively justified. It's also against the law for an employer to dismiss you or to refuse to employ you, just because of your age, unless that too can be objectively justified. If your employer does this, it's called age discrimination. An employer is not allowed to discriminate against you either for being too young or for being too old.

It might also count as age discrimination if you are discriminated against because:

• Of the age of someone you know, such as family or friends, rather than because of your own age. For example, your employers can't discriminate against you for being the carer of an elderly relative. This is known as discrimination by association;

• your employer believes you to be a certain age, when you are not. This is known as discrimination by perception.

Age Discrimination means that:

• Employers are not allowed to set a compulsory retirement age of 65;^[5]

• age or age-related criteria/ranges should not normally be used in advertisements;

• you should be eligible for training and development programmes irrespective of your age;

• judgements about your abilities or fitness to work should not be based on your age; and

• your employers must make sure that any redundancy policies don’t directly discriminate against older workers.

You can raise a grievance for Age Discrimination and ultimately bring a claim to an Employment Tribunal^[6] if:

• You are disadvantaged because of age-related training or promotion policies;

• you have been discriminated against or harassed because of your age;

• you have been harassed or victimised on the grounds of age.

Most discrimination is against older people but it is unlawful for an employer to impose a lower age limit for training or promotion, unless this age restriction can be objectively justified, or is imposed by law.

The law around retirement has changed

The default retirement age, which allowed your employer to make you retire when you reached 65 has been abolished. This means that in many cases you should be able to retire when the time is right for you.Your employer can only make you retire if this can be objectively justified in the particular circumstances. This is open to challenge at an Employment Tribunal.See below to find out more about objective justification.

Objective Justification^[7]

If challenged, your employer must be able to show that any direct or indirect discrimination is a proportionate way of achieving a legitimate aim.

What is proportionate?

Your employer should have no reasonable alternative other than to introduce an age-based practice.For example, a construction firm hiring for physically demanding work that requires a good level of physical fitness, the employer might have a case for setting a maximum age for their on-site workers for health and safety reasons.

What is a legitimate aim?

A wide variety of aims may be considered legitimate, but they must correspond with a reasonable need for your employer. Economic factors, such as business needs and efficiency may be legitimate aims, but arguing that it could be more expensive not to discriminate will not be a valid justification.For example, a high street fashion store who wishes to employ younger staff in order to complement their brand image is unlikely to be able to objectively justify this because it is not a valid aim.

Redundancy procedures

Your employer must make sure that any redundancy policies don't directly or indirectly discriminate against older workers.An example of indirect discrimination could be your employer selecting only part-time workers for redundancy, when a large number of these may be older workers. The only exceptions are where an age requirement can be objectively justified.There is no upper or lower age limit on the entitlement of statutory redundancy pay.^[8] Your employer will have to pay you the statutory minimum redundancy payment even if you are under 18 or over 65 (or after your normal retirement age if this is lower).

Our team of experts have extensive experience of advising on Age Discrimination issues during grievances, disciplinary and even the redundancy process - so if you have been a victim of age-related discrimination at work, please contact us - without obligation - to find out how we might assist.