The Equality Act 2010 makes it illegal to discriminate against, or treat unfavourably, employees, job candidates and trainees on the basis of their age. The act specifies direct and indirect discrimination, harassment, and victimisation.
An example of direct discrimination would be when an employer does not appoint a job candidate due to an assumption that the candidate’s old age makes him or her unreliable. Indirect discrimination can occur if an employer provides a benefit for younger or older workers for reasons that cannot be justified in business terms.
An employer risks a legal claim if he or she sacks an older employee because of assumptions about age and poor performance. An Employment Tribunal is likely to judge the age factor, on its own, as an irrelevance. Instead, an employer would have to provide evidence, without reference to age, that the worker was not fulfilling or could not fulfil his or her contractual obligations.
It would also be unlawful for an employer to state in an advert that a job is open to candidates only of a certain age. Again, for this to be lawful, it would require a justifiable business reason.
From 6 April 2011, there is no longer a default retirement age. An employer will not be able to retire an employee on the grounds of age unless this can be objectively justified, such as on health or safety grounds.
To avoid potential claims, an employer should have policies designed to prevent discrimination from taking place. The policies should cover: recruitment and selection, determining pay, training and development, selection for promotion, discipline and grievances and countering bullying and harassment.