The Equality Act 2010 says employers should not discriminate against an older worker or older job candidate. Employment law says it is illegal to discriminate against, or treat unfavourably, workers, job candidates and trainees on the basis of their actual age or the age they are thought to be. While an employment tribunal and employment solicitors recognise the illegality of ‘direct’ and ‘indirect’ discrimination, harassment, and victimisation based on age, the law does state that in limited circumstances, it may be lawful to discriminate based on age.
Age discrimination, or ageism, is widely thought to be a common form of discrimination at work. The Act protects all employees, short or permanent contracts, job applicants, trainees, contract workers, office holders, company directors and partners, those who are on secondment and the self-employed. The Act does not only protect older workers but also younger ones.
Employment legal advice makes plain that it is unlawful for an employer to state in an advert that a job is open to candidates only of a certain age. The only way the advert can be lawful is if there is a justifiable business reason. Also, 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.
The law seeks to protect employees and workers of any age during all aspects of employment, including:
Direct discrimination is where an employer or manager treats a worker less favourably than others on the basis of their age or perceived age. An employment lawyer could consider lodging a claim where, for example, a young worker is similar in work-related characteristics to an older worker but the younger one is promoted over the older worker. Also, a claim could be lodged because an employer does not appoint a job candidate because of an assumption that the candidate’s old age makes him or her unreliable.
Normally, an employment tribunal would want to be able to have a direct comparison with a similar worker of a different age, called a ‘comparator’. The tribunal would determine whether both workers had been treated equally or whether there was different and unfavourable treatment of one. An employer cannot defend his or herself on the basis that they are the same age as the person alleging discrimination.
Indirect discrimination is where a rule, or a practice, provision or criterion, implemented in the workplace and which applies equally to all persons, puts an employee at a disadvantage, compared to other employees, because of age. The fact that the discrimination may not be intentional is not relevant. So if an employer only lets employees who have ‘recently graduated’ attend a training course, it is likely that very few older employees will be able to attend. This law also protects those who are deterred from applying for a job because they know that a workplace practice would put them at a disadvantage. As with direct discrimination, it is necessary to compare the employee’s situation with other colleagues who do not share their age. Indirect discrimination can be objectively justified by an employer.
Age harassment is degrading, offensive, intimidating or distressing behaviour aimed at a worker that creates a hostile working environment for the worker and is carried out because of the worker’s age. An employment tribunal would recognise harassment aimed at younger as well as older workers. A tribunal’s judgement about harassment is partly based on what a ‘reasonable person’ says is offensive to the dignity of the victim. An example would be employees making snide comments about ageing such as wrinkles or baldness. It might also include being pressured to retire. Employment law also protects people because, as stated, they are perceived to be of a particular age but also because they are associated in some way with a person of a particular age. The association could be that the person works with an elderly relative referred to as an ‘old fogey’. Also, any worker who is not the target of unfavourable behaviour can lodge a discrimination case in an employment tribunal.
Age harassment discrimination can also be about the culture of an organisation and not just about discrimination aimed at an individual. For instance, an employment lawyer would advice an employer that their workplace should not to tolerate ageist jokes. Age-related harassment can also relate to discriminatory conduct not just from work colleagues and managers but an organisation’s clients, customers or suppliers. If an employer is made aware of such harassment and does not take action to prevent it, then an employment lawyer could take legal action.
Victimisation is when a worker is treated badly because he or she made a complaint of discrimination under the Equality Act or if an employee was supporting a complaint or made it known they intended to support another worker making a discrimination complaint. For instance, following employment legal advice an employer should not threaten to sack a worker who has volunteered to be a witness in a case brought under the Equality Act.
- – The Act enables a worker to make a claim for unfair dismissal after the age of 65 or the age people in the job normally retire.
- – It is not a good reason in itself for an employer to retire an employee because the employee has reached the retirement age.
- – Workers over 65, or after the normal retirement age, can claim the statutory redundancy payment.
- – The Act protects employees from age discrimination in employment and work-related training. Employment lawyers would advise employers to ensure there is no discrimination based on age in redundancy policies.
- – Indirect discrimination in redundancy is also illegal such as employers selecting only part-time workers for redundancy, when a large number of these may be older workers.
- – Employers should not discriminate in regard to the benefits provided to employees over 65. The only exceptions will be where an age requirement can be objectively justified.
Lawful age discrimination
As stated, the law accepts that it is sometimes necessary and justifiable to ‘discriminate’ on the basis of age. An employer must be able to show that such discrimination is a ‘proportionate means of achieving a legitimate aim’. An example is where an employer hires a person of a certain age because of a genuine occupational requirement such as selecting actors to play a part of a certain age. For the discrimination justification to be valid, the employer must show that there was no reasonable alternative.
To avoid potential claims, an employer should have policies drafted by employment lawyers to prevent discrimination from taking place.