Age Discrimination in the Workplace

The law relating to Age Discrimination is governed by the Equality Act 2010 and has wide applicability. As an employer, you should be aware of the issues around Age Discrimination to avoid any pitfalls.

Age is a protected characteristic and the law seeks to protect workers from age discrimination in all aspects of  employment, including: recruitment, terms and conditions, promotions, transfers, dismissals and training.  It applies to actual and prospective employees, ex-employees, apprentices etc.  In addition, the default retirement age and retirement procedure have now been abolished meaning that employers can no longer dismiss employees on the grounds of retirement.

Section 5 of the Equality Act sets out the protected characteristic of age:-

"In relation to the protected characteristic of age- 

(a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic  is reference to persons of the same age group.

(2) A reference to an age group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

Direct age discrimination occurs where you treat a worker less favourably than another worker, because of his or her age.  The basic premise is that of "less favourable treatment" compared to a person who does not share the complainant's protected characteristic. Even if the less favourable treatment is based on someone's perceived age (and this may be wrong), it can still constitue direct discrimination.  It also makes no difference how old the perpetrator is. An example of direct age discrimination would be if you as the employer selected only the people aged above 50 for redundancy.

Indirect age discrimination occurs when you as the employer put workers at a disadvantage when an apparently neutral "provision, criterion or practice" is applied, compared to workers who do not share a particular characteristic.  For example, a job advertisement requiring several years experience in a particular field could indirectly discriminate against younger workers.

Age discrimination is unique as it is possible for you to objectively justify both direct and indirect discrimination (with other types of discrimination you cannot justify direct discrimination). A lot of the cases from within the UK and Europe on objective justification revolves around retirement ages, redundancies and pension entitlements.

There are some situations that are exempt from age discrimination in the workplace legislation. For example:

  • Age-based methods for calculating statutory and enhanced redundancy payments and unfair dismissal payments will remain (although enhanced redundancy schemes should mirror statutory schemes when using age);
  • Benefits which recognise length of service remain in place (up to certain limits).
  • Schemes to reward loyalty and experience also remain.

The age discrimination in the workplace rules do not affect the age at which people can claim their state pension.

In addition, there are certain circumstances in which you can treat younger or older employees differently providing they can show that there is objective justification for this. For example, special provisions may be required in order to protect your health and safety if you are an older worker being employed by a construction company.

If your employee is subjected by you to any detriments as a result of having made (or intending to make) a complaint or allegation relating to the discrimination they have suffered, they may have a claim for victimisation. They may decide to resign because they feel their position is no longer tenable as a result of the discrimination they have suffered, in which case they will also have a potential claim for constructive dismissal.

If you would like more detailed information about age discrimination, Ashby Cohen can help you. We specialise in employment law cases, and our years of experience as employment lawyers make us uniquely qualified to assist you with any age discrimination issues you may have. Please contact us for an initial free telephone consultation.

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