Age Discrimination

The Equality Act 2010^[1] is a law which protects individuals from discrimination. It means that discrimination or unfair treatment on the basis of certain personal characteristics, such as age, is against the law in almost all cases.

The Equality Act 2010 is the legislation that protects people from discrimination in the workplace and in wider society.^[2]

It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. It sets out the different ways in which it’s unlawful to treat someone.

Under the Equality Act there are nine protected characteristics^[3] and the following characteristics are protected characteristics:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

Under the Equality Act, individuals are protected from age discrimination in all aspects of their employment including the recruitment process, employment terms and conditions, promotions and transfers, training and dismissals. The Equality Act protects individuals from direct discrimination, indirect discrimination, harassment and victimisation.^[4]

The act of age discrimination in the workplace can take many forms. Generally, it occurs when an employee or job applicant is treated unfairly and less favourably to others because of their age.^[5]

The Equality Act 2010 has replaced the Equal PayAct 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Age) Regulations 2006.

Yes, it is against the Equality Act to discriminate against someone because of their age.^[6] This could be because the individual is younger or older than others and if the difference in treatment is as a result of their age it will breach the Equality Act.

If you've been treated unfairly and less favourably to others at work and it's because of your age, you may have been discriminated against. The law which says you mustn't be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful.

Definition: age discriminationin the workplace is the practice of letting a person's age unfairly become a factor when deciding who receives a new job, a promotion, or other job benefits. Decisions about terminating employees also cannot be solely based on their age.

Legislation came into force in 2011 making it unlawful to treat people differently on grounds of age, unless such treatment could be justified or falls within one of the exemptions to the law.^[7] The default retirement age of 65 has been phased out. Employers are only able to compulsorily retire workers if it can be objectively justified.

Objective justification^[8] is what an employer needs to show, if they want to stay on the right side of the Equality Act while treating people differently on grounds of age, unless you can claim:

• they were acting within the general exemption
• they were acting within one of the specific exemptions
• they were complying with other legislation containing age restrictions
• they were undertaking 'positive action'
• they have a 'genuine occupational requirement' for somebody of a particular age

For an employer to prove 'objective justification', for either direct or indirect discrimination on grounds of age, they must be able to show that what they were doing was a appropriate and necessary ('proportionate') means of achieving a 'legitimate aim'.

To prove that what they were doing is appropriate and necessary, the employer must be able to show:

• that it will actually contribute towards achievement of a 'legitimate aim'
• that the benefits they expect it to produce were sufficient to justify the amount of discrimination they were prepared to practise
• that they were practising no more discrimination than is strictly necessary

The concept of 'objective justification' is very difficult to pin down partly because it depends on the employer establishing that they had a 'legitimate aim'; and there is neither definition nor description of what a 'legitimate aim' may be.

A legitimate aim is the reason behind the discrimination and the reason must not be discriminatory in itself and must be a genuine or real reason.

Here are a few examples of a legitimate aim:

• Health, safety and welfare of individuals
• Running an efficient service
• Requirements of the business
• Desire to make a profit

There are four types:^[6]

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.
2. Indirect discrimination– This can occur where there is a policy, criteria or practice (PCP) that applies to all workers, but disadvantages people of a particular age.
3. Victimisation– This covers unfair treatment of an employee who has made or supported a complaint about age discrimination.
4. Harassment- This can be unwanted behaviour/conduct towards person related to age. Such behaviour or conduct can be deemed as harassment if it has the purpose or effect of violating someone’s dignity or creating a hostile, intimidating, degrading or humiliating environment for that person.

The legislation covers all employees, job applicants, contract workers, office holders, those who are on secondment and the self-employed. The regulations affect all areas and stages of employment, including:

• Recruitment
• Employment terms and conditions
• Promotions and transfers
• Training
• Dismissal

Remember, there is no upper or lower age limit on age discrimination.

There are a number of signs of age discrimination including:

• Biased comments– For example, being calling names like a coffin dodger by your boss or an interview panel repeatedly commenting on your lack of relevant experience and youth.
• Promotion– if you are passed over for promotion in favour of a less qualified employee, it could be an example of age discrimination.
• Unequal treatment– if you are disciplined for something that older or younger employees get off scot free about, you could have a case.
• Laid off– if there are a number of redundancies where you work, and those laid off are disproportionately older or younger, that could be down to age discrimination.
• Favouritism– if older or younger employees are excluded from important meetings.

The discrimination laws do protect individuals when you apply for a job as well as while you are working for an employer. The problem is that it can be difficult to prove sometimes, so it is important to collect and gather evidence. This could be making a note of it in a diary or note book and keeping details of any witnesses if there are any. While making those notes, don’t forget to put down times, dates and places.

If you feel you are being treated differently it is important to get some advice.

First, you should try to sort out the problem with your employer informally and then formally through the grievance process^[9] before taking the matter any further.

If you have followed the employer’s grievance procedure including the appeal process and the matter is still not resolved, you can take the matter up with an employment tribunal.^[10]

The important point to remember an employment tribunal complaint MUST be made within three months of the discriminatory act complained about.

If the company grievance process takes a longer than the 3 months, you may have to submit your tribunal claim before the grievance process is completed. Always take legal advice if making a claim to an employment tribunal.