The Equality Act 2010 means that an employer cannot discriminate against an older worker or job candidate. Employment law says it is illegal to discriminate against, or treat unfavourably, workers, job candidates and trainees on the basis of their age. While an employment tribunal and employment solicitors recognise ‘direct’ and ‘indirect’ discrimination, harassment, and victimisation.
Direct discrimination on the grounds of age would be when an employer does not appoint a job candidate as result of 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 but not for others for reasons that cannot be justified in business terms.
An employment lawyer could make a legal claim if an employer 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.
Employment legal advice points out that it is also 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.
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.