When can age discrimination occur?
Age discrimination can occur if somebody is treated less favourably because of their age or because they belong to a particular age group. Age discrimination is unlawful, unless it can be justified.
What law governs age discrimination?
The Equality Act 2010 makes it unlawful to discriminate against employees, job applicants and other workers such as agency workers and contractors.
How can an employer discriminate an employee because of age?
There are four ways in which an employer could discriminate an employee for age discrimination:
Direct discrimination; where an employee is treated less favourably because of age without objective justification. For example, telling an employee that they are too old to apply for a promotion;
Indirect discrimination; where an employer has a provision, criterion or practice (PCP) that has a greater adverse impact on workers in one age group compared to another and the employer cannot show that the PCP is objectively justified. For example, an employer requires applicants for a management role to have at least ten years' industry experience. This would disadvantage younger people who have not had the opportunity to work for that long. The requirement would be indirectly discriminatory if it could not be justified.
Harassment; where an employee is subjected to unwanted conduct related to age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is not always intentional bullying. It could be using a nickname like ‘old timer’ which is perceived as ‘banter’ and has no malicious intent but is nevertheless upsetting to the recipient employee.
Victimisation; where an employee makes or supports a complaint about age discrimination and is treated unfairly.
Can age discrimination be justified?
Both direct and indirect age discrimination can potentially be objectively justified, if the discrimination is "a proportionate means of achieving a legitimate aim”. By way of example in the case of Seldon v Clarkson Wright and Jakes (a partnership) [2012] IRLR 590, the Supreme Court held that a law firm had identified legitimate aims (staff retention, workforce planning and dignity) which could potentially justify its compulsory retirement of a partner at the age of 65.
What should an employer do to avoid age discrimination in recruitment?
Employers should carefully consider the language they use in job advertisements, job descriptions, person specifications, interview questions and publicity materials. It is best to avoid advertisements that set a preferred age range or use language such as ‘mature’, ‘youthful’ or ‘recent graduate’ which may impact adversely on certain age groups. It is preferable to describe the level and kind of experience needed for the job, although specifying an age range might be permissible if it is a genuine occupational requirement. For example, an upper age limit of 30 for recruitment as a firefighter was held to be lawful as an occupational requirement in the case of Wolf v Stadt Frankfurt am Main [2010] IRLR 244 (ECJ) because few people over 45 had the necessary physical capabilities and it was necessary for firefighters to spend a sufficient period in the role before transferring to less demanding work.
What should an employer do to avoid age discrimination in redundancy?
Redundancy selection should not be based directly or indirectly on age unless objectively justified in each case. Statutory redundancy payments however can be and are calculated by reference to age and length of service. If an employer has a redundancy pay scheme that is more generous than the statutory scheme it should closely mirror the statutory age bands and multipliers. Redundancy schemes that do not follow this requirement are likely to be unlawful unless they can be objectively justified.
Can an employer retire an employee or is this age discrimination?
The compulsory retirement of a worker once they reach a particular age is, in principle, directly discriminatory on the grounds of age unless it can be objectively justified.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changes since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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