Age discrimination: employers’ guide

Age discrimination, also known as ageism, is one of the most common forms of unfair treatment at work. Discriminating against an employee because of age can have serious practical and legal implications for your business, even where the discriminatory practice or conduct is unintentional.

The following guide looks at age discrimination in the workplace, and how to take preventative steps to avoid behaviour that has a discriminatory effect.

What does the law say about age discrimination?

Age discrimination at work is where an employer treats an employee unfairly because of their age. Treating someone unfairly because of age, apart from in very limited circumstances, is against the law.

Under the Equality Act 2010 age is one of nine protected characteristics. The others include disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.

There are four main types of age discrimination under the 2010 Act:

• Direct discrimination
• Indirect discrimination
• Harassment
• Victimisation

Direct age discrimination

Direct age discrimination can come in three different forms. It is where someone is treated less favourably than others because they are either:

• A different age or in a different age group to another job applicant or employee (ordinary direct discrimination)
• Thought to be a particular age, regardless of whether or not this perception is correct (discrimination by perception)
• Associated with someone belonging to a particular age group, such as a member of their family or a colleague (discrimination by association)

Direct age discrimination could occur where someone is considered too old or young for a role, although it is not always about a young person being preferred over an elderly person, or vice versa. People of all ages can be affected, where the age difference involved, or perceived age difference, can sometimes be small.

Indirect age discrimination

Indirect age discrimination is where a provision, criterion or practice puts, or would put, other employees or job applicants of the same age or age group at a disproportionate disadvantage when compared to others who don’t share that same protected characteristic, ie; where they are of a different age or age group.

The individual employee or job applicant must then show that they have been disadvantaged by the application of the provision, criterion or practice.

Indirect discrimination is usually less obvious than direct discrimination and is normally unintended. It can apply to any policies, procedures, requirements, rules and arrangements in the workplace, for example, offering a training course only to recent graduates, potentially discriminating against older employees.

Harassment by reason of age

Harassment by reason of age is unwanted conduct in the workplace that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This can be because of the employee’s age, the age they are thought to be, or the age of someone else they are associated with.

This can include bullying, threats, insults, nicknames, gossip, unwanted jokes, intrusive or inappropriate questions and comments, or even excluding an employee from professional or social engagements because of their age.

Harassment can be by way of written, verbal or physical conduct. It can also include where an employee is not on the receiving end of the conduct, but this still has negative impact on their dignity at work or working environment.

To constitute harassment, the focus falls on how the victim perceives or feels about the unwanted conduct, and whether it was reasonable to react that way, rather than whether any harm or negative impact was intended. It is rarely an excuse to say something is innocent banter if the victim takes offence.

Victimisation by reason of age

Victimisation by reason of age is when an employee suffers a detriment, ie; something that causes disadvantage, damage, harm or loss because of either:

• Making an allegation of age discrimination
• Supporting someone in a complaint of age discrimination
• Giving evidence relating to a complaint about age discrimination
• Raising a grievance about or bringing a claim for age discrimination

An employee is also protected from victimisation if they suffer a detriment because they are suspected of doing or believed they may do any of the above, for example, where someone is passed over for promotion that they would otherwise have been given, having been suspected of being a ‘troublemaker’.

What are the employer’s duties and an employee’s rights?

By law, an employer is under a duty not to directly or indirectly discriminate against an employee or job applicant by reason of their age, either by treating them less favourably or by putting them at a disadvantage. They are also under a duty not to harass or victimise someone for a reason connected to their age.

In turn, the employee or prospective employee is protected from unfair treatment because of how old they are or, in some cases, how old they are thought to be or the age of someone they are associated with.

No minimum length of employment by an employee, or any employment at all for a job applicant, is required to claim age discrimination. It is potentially unlawful to discriminate against someone from the point a job role is advertised through to the last day of employment and even beyond, including references.

The law protects the job applicant or employee in relation to various key areas, including the following:

• Recruitment
• Training & promotion
• Pay or other terms & conditions
• Performance management
• Termination of employment
• Retirement

How should employers meet their duties?

By recognising the key areas where age discrimination can often arise in the workplace, you can put in place policies and practices to ensure a job applicant or employee is not discriminated against by reason of their age.

Recruitment

There is a risk of age discrimination taking place at any stage during the recruitment process, so you must be careful not to discriminate against a job applicant because of age at any point, from job descriptions through to job offers.

When advertising a role, set out the type of experience needed for a role rather than ask for a certain number of years’ experience. Unless a specific qualification is essential to the role, applicants should be given the option to demonstrate equivalent qualifications or skills and knowledge from work experience.

You should also avoid wording that suggests an applicant of a particular age group would be best suited to the job, for example, ‘fit and enthusiastic’, which would tend to discriminate against older applicants.

When interviewing prospective candidates and deciding whom to hire, you should be careful not to stereotype someone because of their age. Making age-based assumptions about what an applicant is capable of or how they will behave is one of the most likely causes of age discrimination.

Training & promotion

You must not allow any unconscious bias or stereotypical thinking to creep into your decision-making about who gets trained or promoted. It is very easy to make assumptions about an employee’s needs or ambitions based on their age, length of experience or length of service with you.

It is a common myth that there is more value in training younger staff and no or little value in training older employees who are often wrongly assumed to be more difficult to train or less likely to want to progress. You should never seek to discourage any employee with the necessary skills, knowledge and experience from applying for a more challenging job, regardless of their age.

Pay or other terms & conditions

Generally, you must not have different terms and conditions of employment because of an employee’s age, perceived age or the age of someone they are associated with. There are only limited circumstances in which different treatment because of age can or may be lawful, for example, payment of the national minimum wage or redundancy pay which are linked to age groups.

The law also allows the improvement of pay and job benefits for service of up to 5 years. Otherwise, you should usually base an employee’s pay and perks, such as health insurance and additional holiday, on their job and skills and not how old they are, unless you can objectively justify this for more than 5 years’ service.

Performance management

You should always approach an employee’s appraisal without preconceptions or bias concerning their age. You should also treat employees consistently and fairly when assessing their performance and setting future goals.

You do not need to ignore under-performance simply because an employee is younger or older than other staff, although you must give them a fair chance to reach and maintain an acceptable standard, no matter what their age.

Termination of employment

When making redundancies decisions should be based on factors such as skills, performance and abilities essential to the future of the re-structured business. You must not base a decision on the age of an employee, or put pressure on older employees to take voluntary redundancy or early retirement.

You should also only apply a ‘last in first out’ selection criteria, which has the potential to discriminate against younger workers with less service, when used in conjunction with other criteria, or to decide a tiebreaker.

Equally, when dismissing an employee you must again have a fair reason and adopt a fair process, and not because they are thought to be too young or too old, or because of an ageist culture in the workplace.

Retirement

For many jobs there is no fixed retirement age. Even though when an employee will be eligible for any work pension will be determined by the pension scheme and Equality Act rules, it must be left to the individual to decide when to retire.

You can ask an employee about their short and long-term plans to help you shape the future needs of your business, but you must not raise or prompt a discussion about any possibility of the employee retiring. You must also be careful not to pressurise or bully an employee into retiring.

How should employers deal with ageist language?

Derogatory and abusive comments relating to age, an employee’s perceived age or the age of someone they are associated with, is one of the most common causes of harassment in the workplace. Yet ageist language at work is often overlooked or downplayed as innocent banter.

Examples of ageist language might include a younger employee telling an older colleague they are ‘an old timer’ or ‘over the hill’, or an older employee saying to a young colleague, ‘they are still wet behind the ears’.

You will be directly liable for your own use of ageist language. You will also be liable for an employee’s actions, unless you can show that you took all reasonable steps to try to prevent them.

This means that even where something has been intended as a joke, if this has caused offence you should still address the matter directly with the perpetrator, explaining the effects of their conduct. Where ageist comments have been used deliberately or maliciously, to embarrass and humiliate, you may want to address the matter by way of formal disciplinary proceedings.

When is different treatment because of age allowed?

In very limited circumstances, different treatment because of age can be lawful, for example, where you can prove the need for a certain type of discrimination.

This includes where the direct or indirect age discrimination can be objectively justified as a proportionate means of achieving a legitimate aim, although an employer can never justify harassment or victimisation. Further, objective justification should only be a defence in limited circumstances, and does not mean you have free reign to discriminate against workers because of their age.

You may also be able to take positive action to support applicants or employees of a particular age or age group, if you can show reasonable evidence that they are at a disadvantage, are under-represented in your company or organisation, or have other specific needs because of their age. That said, any positive action must be proportionate and not discriminate against others, where positive discrimination under the Equality Act is unlawful.

Other exceptions where different treatment because of age is allowed include strict occupational requirements, payment of the national minimum wage and statutory redundancy pay where the amount is linked to an employee’s age, and pay and extra job benefits linked to time with the employer up to 5 years.

What are the consequences of age discrimination?

If you treat a job applicant or employee less favourably, or subject them to a disadvantage by reason of their age, you may find yourself facing a complaint before the employment tribunal for unlawful discrimination under the 2010 Act.

Where you have dismissed or made redundant an employee for a reason connected with their age, you may also be subject to a claim for unfair dismissal. In either case this can result in an award of compensation being made against you. You may also be ordered to reinstate an employee that you have dismissed.

The practical and legal consequences for your business can be significant in cases of age discrimination and expert legal advice should always be sought.

Age discrimination FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.