As an employer, you might make the mistake of discriminating against your employees based on their age.
However, in some cases, the discrimination claims can be objectively justified according to the law. If you are unable to justify your employees’ claims, you’ll face legal penalties.
In this guide, we’ll look at what age discrimination is based on the Equality Act, the exception by law, different types of discrimination, where discrimination may happen, and what to do if you are accused of discriminating against your employees.
What is age discrimination?
Age discrimination is when you treat your employees differently or leave them alone because of their age in one of the situations that are covered by the Equality Act 2010. The act has some exceptions, which will be covered further in this guide. Rules on age discrimination don’t apply in certain situations. Examples are when you ask for proof of age for selling goods like alcohol or setting age bands for those who want to compete in sports.
What the Equality Act 2010 says about age discrimination
The Equality Act says that you should not discriminate against your employees because they are or are not of a certain age, or in a certain age group. An age group can refer to a range of ages.
The act also covers age-related terms such as “pensioner” or “youthful” and it can be relative, so it could be a reference to being younger than a particular age. It could be linked to employees’ personal appearance, so if you think that one of your employees is in a particular age group because of the way that they look, that would be covered too.
The act has an exception that allows an employer to make a decision based on a person’s age if the decision is objectively justified. This exception is only applicable in certain circumstances and cannot be used to discriminate against older employees.
For example, promoting age diversity or supporting an under-represented age range will be regarded as a legitimate beneficial activity.
Employers cannot force early retirement on their employees, unless in particular circumstances, such as a role that necessitates a certain level of mental ability.
Circumstances in which different treatments may be allowed
- Where discrimination may be lawful.
- Belonging to a particular age group is necessary for a certain role.
- Occupational requirements.
- Positive action.
- Pay and extra job benefits linked to time with the employer.
- National minimum wage and the national living wage.
- Redundancy and redundancy pay.
- The Armed Forces.
- Employing people under 18.
Who is covered by the Equality Act?
A wide variety of people are protected by the Equality Act, including:
- People engaged on some other sort of contract (for example agency workers or self-employed freelancers).
- People who apply for work.
- Officeholders (such as company directors).
- People undertaking or applying for work-related training (for example apprentices or interns).
It can be difficult to determine which self-employed people come within the legislation and which fall outside.
Different types of age discrimination
There are four types of age discrimination:
The four types will be explained in more detail below:
Direct age discrimination is where you treat someone less favourably than others because of:
- Their actual age: this is ordinary direct discrimination. This is the only type of direct discrimination which may be lawful in limited circumstances.
- The age of someone else they are associated with: such as a member of their family or a colleague – this is direct discrimination by association.
- The age they are thought to be regardless of whether the perception is correct or not this is direct discrimination by perception.
Indirect age discrimination is usually less obvious than direct age discrimination and is normally unintended. Indirect discrimination happens when you have a particular policy or way of working that applies to everyone but puts the person’s age at a disadvantage.
It’s unlawful for you as an employer to discriminate by applying a provision, criterion or practise which disadvantages job applicants or employees of a particular age group, without objective justification.
An example of this type of discrimination would be having a job advert which states that the job would suit someone in the first three years of their career. Someone in an older age group would be more likely to have more than three years of experience and therefore could be disadvantaged.
Indirect discrimination can be permitted if you are able to show that there is a good reason for your organisation’s policy.
Harassment is known as ‘unwanted conduct’ and must be linked to a protected trait, such as age here. This might be because of a number of reasons such as:
- Your employee’s age.
- The age of someone with whom they are associated.
- The age they are thought to be.
- Ageism is common in your organisation.
The intention or effect of the harassment must be to violate your employee’s dignity or to create an intimidating, hostile, degrading, humiliating, or offensive environment for them.
For example, if during a training course, the trainer repeatedly remarks on how weak an older employee is at learning how to utilise a new technological tool due to age grounds, this may be deemed age-based harassment. Harassment cannot be objectively justified.
Victimisation is when your employee suffers what the law terms a ‘detriment’ - something that causes disadvantage, damage, harm, or loss because of one or more of the following reasons:
- Making a claim of discrimination.
- Supporting a claim of discrimination.
- Giving evidence relating to a claim about discrimination.
- Raising a grievance concerning equality or discrimination.
- Doing anything else for the purposes of (or in connection with) the Equality Act, such as bringing an employment tribunal claim of discrimination.
Victimisation may also occur because your employee is suspected of doing one or more of these things, or because you believe they may do so. If your employee feels pushed out, disregarded, or denied promotion because they supported an age discrimination claim in your organization, that is a "detriment."
Discrimination by perception
It’s unlawful if you discriminate against your employee because you think they belong to a certain age group even though they don’t. This is called discrimination by perception.
For example, you may refuse to let an employee attend a business event because of a misunderstanding about their age. This could be discrimination because of their perceived age and make them disproportionately affected by the wrong perception.
Where age discrimination may happen
There are many scenarios in which age discrimination can occur in the workplace, such as:
To avoid discrimination, employers when recruiting should not allow any bias or stereotypical thinking about age to influence their assessment or decision-making at any stage of the recruitment process.
If you as the employer offer a training course only to recent graduates or younger workers, this could indirectly discriminate against older workers as it could exclude them. There shouldn't be any age-related criteria for offering training to employees and so you should hold positive and regular work-life discussions with all employees to identify training requirements that would benefit both you and them.
You must not deny an employee promotion because of their age, perceived age, or because of the age of someone they are associated with. For example, it is likely to be discriminatory to:
- Rule out a capable employee to take on extra responsibilities because they are considered to be too young for the new role.
- Discourage an employee with the necessary skills, knowledge, and experience from applying for a more challenging job because of their age.
- Overlook inviting a colleague of a different age group to the rest of the team to regular socials.
- Allow any bias or stereotypical thinking or assumptions about age to creep into decisions about who gets development opportunities or promotions.
You should make sure job vacancies and promotion opportunities are mentioned to all relevant staff, no matter what their age.
Pays and terms and conditions
Your terms and conditions of employment shouldn’t be different because of an employee’s age, perceived age, or the age of someone they are associated with. This might, for example, include a bonus.
However, there are circumstances where different treatment because of age can or may be lawful using objective justification. Examples include redundancy pay, pay, and job benefits linked to up to five years’ length of service and, where you as the employer can objectively justify it, for more than five years’ service.
Generally, allocate different work times, shift patterns or the number of hours of work because of a job applicant or employee’s age. There can be exceptions because of employees’ flexible working requests approved by the employer.
The manager doing an employee’s appraisal must:
- Make sure the appraisal is fair.
- Approach and conduct it without preconceptions or bias concerning age.
- Avoid raising or prompting a discussion about when the employee might retire asking ‘when are you planning to retire?’, suggesting they retire or putting pressure on them to retire.
- Treat relevant employees consistently when assessing their performance and setting future goals, no matter what their age. But you must make reasonable adjustments for employees with a disability.
You must make sure the need for redundancies is genuine and that the process for deciding who is made redundant is fair. Decisions should be based on factors such as skills, work performance, and abilities needed in the re-structured organisation.
You must not base a decision on the age of an employee or select staff for redundancy solely or mainly based on ‘last in, first out’ because this is likely to discriminate against younger employees. However, there are circumstances where you may use objective justification to justify ‘last in, first out' as part of redundancy selection criteria.
Previously, employers could retire employees at the age of 65 without fear of facing an age discrimination lawsuit. This has now changed, and there is no default retirement age of retirement for employees. Any dismissal for reasons of age that was not begun before April 6, 2011, will be considered direct age discrimination.
You as the employer must not:
- Treat an employee detrimentally because they are thinking about retiring or could already take their work pension or State pension.
- Make the mistake of thinking you have the right to change an employee’s employment contract once they take any pension.
As an employer, you might be thinking about the normal retirement age. You have to consider that the retirement age must be proportionate.
Proportionality entails striking a balance between the relevance of the legal goal sought and the scope of the discriminating impact. Setting varied retirement ages for distinct types of employees may be necessary to make this happen.
You can only dismiss an employee for a legitimate reason and through a fair process. The following are practices that you must not demonstrate:
- Dismiss an employee because of their age or because of an ageist culture in your organisation.
- Suggest early retirement to an employee.
- Use ageist language for dismissal.
- Use age as a reason for dismissal.
You must not deny a flexible work request from one employee because another employee is more deserving because they are older, younger, or have family care responsibilities.
One method for managing requests is to consider them in the order in which they were made. The employer could explore eliminating the 26 weeks of service eligibility criterion and allowing job seekers and workers to request flexible working from day one.
What do you need to do if an employee claims age discrimination?
If any of your employees ever claim any kind of discrimination, harassment, or victimisation at work, you should call a meeting to discuss their grievance as soon as possible.
If this doesn’t work out, they may proceed to an employment tribunal within 3 months of the date of dismissal or alleged discriminatory act.
If their claim is successful, you will have to compensate for the injury to their feelings based on “Vento” bands which are increased annually each April and may exceed the highest Vento band in some cases.
For claims presented after 6 April 2022, the relevant Vento bands will be:
- Lower band (for less serious cases): £990 - £9,900.
- Middle band: £9,900 - £29,600.
- Top band (for the most serious cases): £29,600 - £49,300.
Get expert age discrimination advice with Peninsula
You may mistakenly or intentionally contribute to one of the four types of age discrimination against your employees in your organisation.
The amount of compensation for age discrimination may exceed the highest Vento band. As an employer, if you fail to overcome your personal biases regarding employees’ age you could face serious penalties.
Peninsula offers 24/7 HR advice regarding different types of age discrimination which is available 365 days a year.
Want to find out more? Book a free consultation with one of our HR consultants. Call 0800 028 2420