Age discrimination: an overview

Protection from age discrimination at work is fairly extensive and situations that are covered include vocational training and recruitment, as well as areas such as being promoted or dismissed and moving positions within an organization. The Equality Act 2010 (‘EA’) is the principal piece of legislation that governs unlawful discrimination on the grounds of someone’s age and is a consolidation of all the previous equality legislation, such as the Employment Equality (Age) Regulations 2006. Whilst the protection in the EA provides good coverage for older workers, it is also aimed at a wide range of other people – employees, trainees or jobseekers – experiencing discrimination at work as a result of their age.

Where an age discrimination claim arises, both employer and employee should bear in mind at the start of the process that it may be necessary to follow the ACAS Code of Practice on Discipline and Grievance Procedures (www.acas.org.uk) thataims to resolve disputes at work. A successful employee claim could be reduced by up to 25% if the Code should have been complied but is not and there are equally tough penalties for employers.

What is age discrimination?

According to the EA, there are several different types of age discrimination – victimization, direct discrimination – including discrimination as a result of a perception about someone’s age (whether or not the perception is accurate) or that is the result of a connection with someone of a certain age – harassment and indirect discrimination. Discrimination may occur during employment, or in some situations when employment has ended. It may be the result of the employer’s actions, or the actions of the employer’s agents, or other colleagues. If an employer can show that indirect or direct discrimination is a ‘proportionate means of achieving a legitimate aim’ then the discrimination may be warranted.

Victimisation is behaviour that is directed towards someone who has complained about age discrimination themselves, or assisted someone else who has made a complaint. The behaviour will usually consist of that person being treated in a way that is less favourable than the way others are treated, because of the complaint made or the assistance provided to someone else who has made a complaint.

Direct discrimination is the most obvious type of discrimination, as it will be a simple case of someone being treated in a way that is less favourable than someone else – or than someone else would be treated – directly as a result of that person’s age or the age group they fall into.

Indirect discrimination applies to a provision, criterion or practice in a working environment (for example a workplace policy) that relates to everyone, but by its nature results in certain age groups being put at a disadvantage compared to those of a different age.

Harassment may take many forms and could be something as ‘harmless’ as a workplace setting in which it is common to tell jokes that make fun of people of a certain age. It may also be behaviour that focuses on an individual, where that person is left out or made fun of because of their age. Harassment takes account of the environment that is created for the individual because of the behaviour, whether it is one that is hostile, humiliating, degrading or intimidating, as well as the effect on the person’s dignity and whether their dignity has been violated.

Are there any exceptions?

Retirement – there are several situations with respect to retirement where certain decisions taken by an employer will not constitute discrimination at work. Enhanced redundancy payments that follow the statutory redundancy scheme will be exempt from the EA in the same way as the calculations used to calculate statutory redundancy pay are exempt, even though they are based on age-related criteria. An employee can be compulsorily retired if notice of retirement was served on someone who reached the previous default retirement age of 65 before 30th April 2011 and where the notice was issued on or before 5th April 2011, or where there is an objective justification for the retirement i.e. it is a ‘proportionate means of achieving a legitimate aim.’ Other than in these circumstances, it is now unlawful to compulsorily retire someone simply because they have reached the default retirement age of 65 as this has now been abolished. Occupational retirement is justifiable on the basis of age where an occupation genuinely requires someone to be of a certain age.

Benefits – some benefits that are offered to employees may only be given after a certain length of service with a company. These may include benefits like pay increases or private medical insurance. As a younger employee is less likely to meet the length of service criteria, this could theoretically count as indirect discrimination. However, there is an automatic exception for these kinds of benefits where the receipt of the benefit requires five years service or less. Where the receipt of the benefit requires more than five years service, then the employer must demonstrate the benefit is being used to motivate, meet a legitimate business need, or as a reward for loyalty and experience.

The National Minimum Wage is excluded from this legislation even though its structure is based on age groups.

Taking action

Most age discrimination claims will need to be made within three months less one day from the date of the discrimination and will be dealt with by an Employment Tribunal. If the discrimination is ongoing then the time period will run from the last day of the discriminatory behaviour. There is no minimum length of service requirement for making an age discrimination claim and there is no limit to the amount of compensation that can be awarded. Anyone looking to lodge a claim of age discrimination can obtain information on their own situation from an employer using a questionnaire. This should be sent to the employer before any proceedings begin or within 28 days of the start of proceedings.

How is an age discrimination claim decided?

An employee will need to prove that the discriminatory behaviour or event has occurred. After that, an employer is required to justify that behaviour or event.  If it cannot be justified then in most cases compensation is likely to be awarded.