Definition: Age discrimination in the workplace is the practice of letting a person’s age unfairly become a factor when deciding who receives a new job, promotion, or other job benefits. Decisions about terminating employees also cannot be solely based on their age.
The Equality Act 2010 makes it unlawful to discriminate against employees, job seekers and trainees because of age. For example, this may include because they are ‘younger’ or ‘older’ than a relevant and comparable employee.
Key points
There are four main types of age discrimination:
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimisation
Direct discrimination
This applies to treating someone ‘less favourably’ because of:
- their actual age (direct discrimination)
- their perceived age (direct discrimination by perception)
- the age of someone with whom they associate (direct discrimination by association).
Direct discrimination because of someone’s actual age is the one type of direct discrimination that may be objectively justified as what the law terms ‘a proportionate means of achieving a legitimate aim’. This means it must be proportionate, appropriate and necessary (economic factors such as business needs and efficiency may be legitimate aims).
Indirect discrimination
This may occur where a workplace practice (also includes policy, procedures or rules) which applies to all workers, but particularly disadvantages people of a particular age. For example, a requirement for job applicants to have worked in a particular industry for ten years may disadvantage younger people. In some limited circumstances, indirect discrimination may be justified if it is ‘a proportionate means of achieving a legitimate aim’.
Harassment
Harassment is when there is unwanted conduct related to age which has the effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
Victimisation
Unfair treatment of an employee who has made or supported a complaint about age discrimination.
Age discrimination rights apply to the most types of workers. Under the Act, some limited exceptions are allowable. These can include pay and other employment benefits based on length of service. There are also some limited exceptions and exemptions relating, for example, to the National Minimum Wage, redundancy payments, insurance and pensions.
The Act says there are no upper age limits on unfair dismissal and redundancy.
Making a claim of age discrimination
If someone feels they have been discriminated against, they may be able to make a claim to an employment tribunal. However, it is recommended that steps are taken to sort the matter informally in the first instance.
Further information is available via the link to the Ministry of Justice-Employment Tribunal Guidance (link below).
Dismissal
Unless it can be objectively justified it is not permissible for someone to be dismissed on grounds of retirement. Older workers can voluntarily retire at a time they choose and draw any occupational pension they are entitled to. Employers cannot force employees to retire or set a retirement age unless it can be objectively justified, for example posts in the emergency service that requires a significant level of physical fitness.
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