Age discrimination

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Quick Facts

23rd June 2023

  • Direct age discrimination is defined as treating someone less favourably because of age. It can sometimes be justified if it is a proportionate means of achieving a legitimate aim.

  • Indirect age discrimination is when a provision, criterion or practice (PCP) is applied to everyone and is apparently age neutral, but which, causes an individual employee a disadvantage, disadvantages more people in one age group than in another, is not justifiable as "a proportionate means of achieving a legitimate aim".

  • Harassment is defined as unwanted conduct related to age which has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

  • Victimisation is defined as treating someone less favourably because they have brought a claim of discrimination or supported someone else who has made a claim.

  • Some practices that would otherwise be discriminatory are covered by exemptions. These include some types of positive action to address underrepresentation or disadvantage, age based appointments based on genuine occupational requirements, some service-related pay and benefits, paying the National Minimum Wage, statutory redundancy pay and some enhanced redundancy pay schemes and certain age based practices related to pensions and insurance.

  • There is no longer an exemption covering compulsory retirement.

  • Remedies for a successful discrimination claim can include a declaration, recommendations and/or compensation (which does not have an upper cap). Employers are advised to follow good practice and may be held vicariously liable for the actions of their employees.

Summary

The Equality Act 2010 covers discrimination and harassment related to age (amongst other characteristics), as well as victimisation.

In Practice

The law

Age discrimination against employees is generally unlawful under the Equality Act 2010 unless it is objectively justified or falls within one of the Act's specific exemptions. Workers of all ages are protected.

There are two types of age discrimination: direct and indirect. The Equality Act also prohibits age related harassment and safeguards those who complain of discrimination against victimisation.

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Case Reports

Millar v The Oak Trust - Age discrimination: avoiding enhanced payments

Where a redundancy process is accelerated, and as a result not carried out in accordance with organisational policy, in order to avoid paying out a substantial payment under the local government pension scheme, it can result in successful claims for both unfair dismissal and age discrimination.

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Mr G Cowie v Vesuvius Plc - Unfair dismissal: age discrimination

Age-preference policies and recruitment practices lead to unlawful age discrimination.

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Mr K Cook v Gentoo Group Limited - Age discrimination: legitimate aim

Could dismissal without proper internal process, to shorten redundancy consultation and dismiss an employee before they became eligible for an enhanced pension payment, be a proportionate means of achieving a legitimate aim?

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Robson v Clarke's Mechanical Ltd — Discrimination: Age

The Employment Tribunal (ET) has held that a plumber called “half dead Dave” by his colleagues, and dismissed without warning by reason of redundancy, was both discriminated against on grounds of age and unfairly dismissed.

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Pitcher v University of Oxford and University of Oxford v Ewart - Age discrimination: compulsory retirement age

The EAT held that a compulsory retirement age can be lawful, in limited circumstances. In these two cases, separate to each other but linked by the effects of the same policy, the employer argued that a compulsory retirement age of 68 was a proportionate means of achieving a legitimate aim.

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Heskett v Secretary of State for Justice - Indirect age discrimination

The Court of Appeal has held that indirect age discrimination can potentially be justified on the basis of saving costs to balance company books.

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