In this article, Kathy Daniels explains the concept of age discrimination and steps employers ought to take to ensure that they are avoiding discriminatory actions.

Age discrimination

The Equality Act 2010 is the legislation that covers discrimination. The Act contains nine different protected characteristics which are the grounds on which discrimination is unlawful. One of these is age. Age discrimination can occur in a number of different ways.

Direct discrimination

This is treating someone less favourably because of their age. For example, this could be rejecting someone for a job because of their age. Direct age discrimination is the only form of direct discrimination which can potentially be justified — if the employer can show that the decision is a “proportionate means of achieving a legitimate aim”.

Arguing that it would cost more to employ an older person does not justify direct age discrimination. A potential justification could be health and safety (maybe showing that a younger person would not have sufficient perception of risk to do a job safely). The employer must be able to show that there was both a justification, and then that the decision to focus on age was the best way to achieve the required outcome.

Indirect discrimination

This occurs when a provision, criterion or practice is applied to all; it is more difficult for a group of a particular age to comply; it is to the detriment of an individual and it is not a proportionate means of achieving a legitimate aim.

For example, requiring applicants for a job to have a specific number of years’ experience is putting in place a “provision, criterion or practice” which will be more difficult for younger people to comply with. Younger people have had less time to gain experience. Specifying years of experience, therefore, is only allowable if it can be shown that the individual would not be able to do the job without that experience.

Using length of service as one of the criteria in a redundancy selection matrix is allowed as long as it is not heavily weighted, and as long as it is one of a number of criteria being used. It would be indirect age discrimination to operate “last in, first out” as this will penalise people with shorter service who are likely to, on average, be younger people.

In Chief Constable of West Yorkshire Police v Homer [2012], it was indirect discrimination to introduce a new grade where only employees with a law degree could be paid at the highest rate. Despite having several years of experience, the employee did not have a law degree, and there was no time for him to study for one before he was due to retire.

Perceptive discrimination

This is when someone is treated less favourably because it is perceived that they are of a particular age. Some employers have taken the step of removing the date of birth from application forms to reduce the possibility of direct age discrimination. However, it is still possible to deduce the approximate age of someone by looking at the dates of their education or the date when they entered employment.

Associative discrimination

This is when someone is treated less favourably because of the age of someone who they associate with. For example, this could be deciding not to recruit someone because they are a carer for an elderly relative.

Harassment

This is unwanted conduct which has the purpose or the effect of violating the other’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. Teasing someone because of their age could potentially be harassment. It is important to note that it could still be harassment if the employee initially went along with the teasing.

In Dove v Brown and Newirth Ltd [2016], an employee was dismissed at the age of 60 years. He had been referred to as “Gramps” by colleagues for some time and had used the name himself even signing off an email using the nickname. However, he was successful in arguing that this was discriminatory.

Victimisation

This is treating someone less favourably because they have previously brought a claim of discrimination or have supported someone else who has brought such a claim.

Specific issues to note

Retirement

There is no mandatory retirement age in the UK and, therefore, employers should presume that an employee will continue working until that employee resigns. Putting an employee under pressure to retire would be age discrimination.

The only exception to this is when there is an employer-justified retirement age. However, this is only allowable if there is a very good reason (typically physical or cognitive) why the employee should retire at a certain age.

Statutory benefits

There are a number of statutory benefits that relate to age or length of service. For example, the National Minimum Wage (NMW) or National Living Wage (NLW) has different bands based on age, and the calculation of statutory redundancy pay is based on both age and length of service. An employer could introduce enhanced rates that reflect these. For example, the employer could have the same age bands as the NMW/NLW but pay each band a certain percentage more than the minimum.

Other benefits

The law allows employers to link benefits to length of service up to a maximum of five years. For example, some employers allow for an increased amount of annual leave as an employee accrues longer service. To link benefits to service of more than five years there must be a legitimate reason.

Actions

  • Monitor the age of employees and applicants for jobs.

  • Identify any age groups that are under-represented and consider putting in place action plans to address this.

  • Make sure that all line managers are trained and understand what behaviours might amount to discrimination.

  • Unless you have an employer-justified retirement age for certain jobs in the organisation, make sure that employees are not put under any pressure to retire at a certain age.

Last reviewed 27 March 2019