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Age discrimination

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Age discrimination

The Equality Act 2010 provides legal protection against age discrimination. It is, with some exceptions, unlawful to be discriminated against on the grounds of your actual or perceived age, or because you are associated with someone of a particular age.

Background to the regulations against age discrimination

Society is changing and the working population as a whole is getting older. Better health standards mean that some people are choosing to work longer and others may be forced to work longer under government proposals to extend the minimum retirement age.

The age discrimination regulations help ensure that people are no longer denied jobs or harassed because of their age, and in most cases, workers of all ages will have an equal chance of training and promotion.

Who do the age regulations apply to?

The age regulations apply to all employers in the private and public sector, vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes. They cover employees of any age and other workers, office holders, partners of firms and others. They cover people using employment agencies or related careers guidance services. They cover recruitment, terms and conditions, promotions, transfers, dismissals and training. They even cover post-employment acts such as the refusal to provide references to ex-employees. The age regulations do not apply outside the employment field and thus do not cover provision of goods or services.

What is the effect of the age regulations on the workplace environment?

  • They stop unjustified age discrimination in employment and in work-related training
  • They remove the upper age limit for unfair dismissal and redundancy rights
  • They remove the upper and lower age limits for the entitlement to statutory redundancy pay.
  • They make age limits for recruitment unlawful, unless the age restriction can be objectively justified or is imposed by law.
Types of age discrimination

Direct age discrimination

This is where you are treated less favourably because of your actual age, when compared with another worker of a different age group, but who otherwise shares the same or similar (but not materially different) circumstances as you (known as a 'comparator').

The comparator's circumstances do not need to be identical to yours (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If you cannot find a suitable comparator, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as you (such as your title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

For example, if you are a television presenter and suddenly after your 50th birthday you are moved to a position where you no longer present programmes while your younger co-presenter was not moved, it could be a case of unlawful direct age discrimination.

Direct discrimination also extends to protecting you if your employer treats you less favourably based on:

  • Their perception of your age, regardless of whether or not the perception is correct. For example, if you are refused a promotion because your employer perceives you to be too young but your colleague is promoted, whose circumstances are similar to yours, except that your employer doesn't have the same perception about their age, you may have been subjected to direct age discrimination.
  • The age of another person (also known as discrimination by association). Such instances would include you being treated less favourably because you live with someone of a particular age, or because you were dismissed after refusing to comply with instructions that would require you to discriminate against someone because of their age.

Your employer could be liable for direct discrimination even if there was no intention to discriminate against you.

Indirect age discrimination

This will occur where your employer equally applies a formal or informal provision, criteria or practice to all workers in the workplace that puts members of your age group at a particular disadvantage when compared with other workers, and you also actually suffer that particular disadvantage. It does not matter whether or not this has been done intentionally.

For example, if your employer states that only 'recently qualified' employees can attend a managerial training course, this will be indirectly discriminatory to older employees as they are less likely to have 'recently qualified'. If you are of that older age and you would have been eligible to attend the managerial training course had it not been for that provision, this could be unlawful indirect age discrimination.

Defences

Your employer can defend a claim of direct and/or indirect age discrimination by justifying their actions or the use of the unlawful practice, provisions or criteria, if it can show that it is a proportionate means of achieving a legitimate aim.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived age, or association with someone of a particular age. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment, even if it was not intended as such.

For example, if the unwanted conduct relates to the age of your partner or friends, it may still be unlawful age harassment if you find it to be degrading or offensive. If the general conduct at your workplace is to tolerate the telling of ageist jokes, this can be age harassment if you reasonably consider it to be so.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on you, then you may have a harassment claim against your employer (even where someone didn't intend to harass you). Note that you will not be protected if you are over sensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Employers will be liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done to you whilst at work' or 'done to you while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

An employer can, however, escape liability for harassment, if it took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when you are treated less favourably because:

  • You have asserted your rights not to be discriminated against on the basis of your age by making a complaint
  • You gave evidence or information in a complaint of age discrimination made by another worker
  • You have taken any other action under legislation protecting you from age discrimination
  • You have alleged that your employer or another worker has contravened age discrimination legislation
  • Your employer believes that you have done or may do any of these things
For example, you might have grounds for a victimisation claim if you are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because you took any of the above mentioned actions.

Positive action

Positive action in training and applying for particular positions

If an employer reasonably thinks that a group of its workers who share a protected characteristic (race, age, sex, sexual orientation, marital status, gender reassignment, pregnancy and maternity, disability or religion or belief) either...

  • suffer a disadvantage connected to their protected characteristic,
  • have needs that are different from the needs of those who do not have their protected characteristic, or
  • have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in an employer's workforce,
...then the employer can take any proportionate action which, either; enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

Employers are allowed to provide special training to members of the group. They can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that employers can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless they meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of the circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. Employers will be able take positive action where all of the following apply:

  • There are two equally qualified candidates to choose between
  • An employer does not have a policy of treating persons with the protected characteristic more favourably
  • Positively discriminating is a proportionate means of achieving a legitimate aim.
The Act does not require employers to take positive action and it is therefore voluntary.

Further guidance on positive action can be obtained from the Equality and Human Rights Commission.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

What to do next

If you think that you're suffering age discrimination at work, you should talk to your employer, explaining why you feel discriminated against. If necessary, put your complaint in writing. An employee representative (such as a trade union official) may be able to help you.

If this doesn't help, you may need to make a complaint using your employer's grievance procedure. If your employer doesn't have a grievance procedure, you should set out your complaint in a letter and hand it to your line manager. If your line manager is the problem, then hand your letter to your HR manager or your line manager's supervisor. Your employer should then arrange a grievance meeting with you. If the outcome of the meeting is unsatisfactory, you have the right to appeal to a manager who was not previously involved in your grievance. For more information, see our articles on in Grievance procedures in England, Wales and Scotland.

If you're unhappy with the outcome of your appeal, you can apply to an Employment Tribunal. You must however obtain legal advice before taking this step. An application must be brought within three months of the act of discrimination taking place. If the discrimination extends over a period, you must bring your claim within 3 months from the end of that period.

Further information

For further information see the Acas guide for employers and employees on age discrimination. Acas offers free, confidential and impartial advice on all employment rights issues.

The Equality and Human Rights Commission (EHRC) has wide-ranging powers and can take legal action on your behalf. They promote equality and fair treatment of employees, customers and the users of services. It is also a good source of advice if you feel you may have been discriminated against at work or elsewhere.