Age Discrimination

What types of age discrimination are there?

Discrimination because of age can be either direct or indirect. Under the law, both direct and indirect discrimination is unlawful unless it can be justified, or if an exception applies.

Direct discrimination

This is the treatment of people less favourably due to their age or apparent age. An example might be if a company refuses to recruit someone simply because of their age, or only promote people under a certain age to senior positions.

Indirect discrimination.

This is a policy or practice that a company or organization has that puts people over a certain age at a disadvantage. An example might be if  a company restricts recruitment to graduates only, which means that fewer older people would be able apply. 

Harassment

Harassment based on someone’s age is unlawful. The is defined as unwanted comments, jokes or communications on the grounds of age which has the purpose or effect of humiliating a person or removing dignity. This includes harassing someone on the grounds that they associate with someone significantly younger than them. This would be considered as unlawful if the person was humiliated or offended

Victimisation

This means specifically being treated unfairly after making a complaint of age discrimination, or giving evidence when others complain of age discrimination. Unlike the other kinds of discrimination, victimisation can not be justified by an employer.

Instructions to discriminate

If an employee refuses to carry out, or neglects to carry out an instruction to discriminate according to age, it will be unlawful for that employee to be treated unfairly because of their refusal to carry it out, or because of their objections to the instruction.

Which areas are covered by the law?

Recruitment

Employers are not allowed to refuse to hire someone because of their age, unless the applicant is six months away from the age of 65, or the employer’s retirement age. Employers can set age requirements for a job if there is a occupational requirement or they can justify doing so. 

Redundancy

Employees who are over 65 and are made redundant will be entitled to statutory redundancy pay. It is unlawful for an employer to consider age when selecting people for redundancy. 

Unfair dismissal

As the statutory upper age limit has been removed, employees over the age of 65 can challenge for unfair dismissal.

Statutory sick pay

People over the age of 65 who are working are entitled to statutory sick pay for up to 28 weeks, like all other employees. 

Retirement

If an employer tries to force retirement under the age of 65 (or the the employers retirement age), a claim for age discrimination and unfair dismissal can be made. Employees over 65 have the right to request to carry on working.

Which areas are not covered by the law?

Volunteers

Volunteers are not protected from age discrimination. Unpaid work is only covered if it is part of a training course. Unpaid office holders are protected, but only if  government appointed e.g. magistrates. 

The provision of goods and services

The law does not apply to the provision of goods and services. This means that, for example, insurance companies and health care providers can discriminate on the grounds of age.

When can discrimination according to age be justified?

In some circumstances employers might be able to justify age discrimination. They will need to prove that it is a necessary method to achieve a legitimate aim. 

They would have to demonstrate:

  • The lack of an alternative way of achieving the aim; 

  • The method actually achieves the aim;

  • The benefits of achieving the aim outweigh any harmful effects of discriminating according to age.

For example:

Health and safety of employees;

The need for an employee to be in the position for an extended amount of time time before retirement;

Business needs and efficiency. A tribunal and court will decide, whether age discrimination is justified or not. An example might be if a certain amount of experience is required for the holder of a position. An air traffic controller might need 5 years experience in order to be competent in the position. This would exclude anybody under the age of 25, as training would take 3 years.

Exceptions to the law

Benefits that link to length of service

The legislation allows some exceptions which lets employers, in certain circumstances, discriminate on the grounds of age, without having to justification. Some employers have policies which link benefits to an employee’s length of service, for example additional holiday entitlement for employees with two years’ service. This may discriminate against younger people as they are not likely to have worked for that length of time.

A genuine occupational requirement

An age requirement for a job can be set if there is a genuine need for a person to have an age related characteristic. For example, an actor playing the role of a character of a certain age.

Where there’s a need for ‘positive discrimination’

For example: If there is a disproportionately young workforce, in a company, they could target their advertising at an older demographic, but appointment must be made on merit.

Proving age discrimination in recruitment

In order to claim age discrimination in recruitment, evidence needs to be shown that age was the reason that the applicant did not get the job. The employer will then need to prove that they did not discriminate on the basis of age. A questionnaire procedure is used to obtain information from employers.

Enforcing your rights

Firstly, mention it informally to your employer or your manager. If it is not resolved informally, make a formal complaint using the grievance procedure stipulated by your employer. It is a legal requirement that they have such a procedure. Your employer must arrange a meeting to discuss the complaint with you. You have the right to be accompanied by a colleague or a union representative. If you are still not satisfied with any decisions following such a meeting, you have the right to an appeal meeting.

The questionnaire procedure is in place if you need evidence from your employer in order to decide if you will bring a claim to an employment tribunal. You could ask your employer, for example, why you were not successful in your  application, to provide the ages of all the other applicants or the ages of those invited for interview.