Age discrimination in the workplace

How is age defined?

Age as a protected characteristic is defined in the Equality Act 2010 as:

• A reference to a person of a particular age group
• A reference to persons of the same age group
• A reference to an age group, whether by reference to a particular age or to a range of ages

Who is protected from age discrimination in an employment context?

The Equality Act 2010 protects jobs applicants, those in employment which includes those working under a contract of employment, a contract of apprenticeship, or a contract to personally to do work. This covers employees, workers and those that are self-employed provided that their contract obliges them to do the work personally.

What is direct age discrimination?

Direct age discrimination is when a job applicant or employee is treated less favourably than others because of age without objective justification. Treatment will be ‘because of’ if it is based on criterion that is a direct function of age.  An employer can justify direct discrimination if they can show its treatment of the individual claiming direct discrimination is a proportionate means of achieving a legitimate aim.

Less favourable treatment can be ‘because of’ age, regardless of whether it is the individual’s age, or the age of someone with whom the individual associates.  It also includes discrimination based on an individual’s perceived age where it is different from their actual age.

What is a comparator?

An employee claiming direct discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.  Circumstances are those factors which the employer has taken into account in deciding to treat the individual as it did.

What is indirect age discrimination?

Indirect discrimination occurs where:

• An employer applies a provision, criterion or practice (“PCP”)
• The individual is of a particular age or age group
• The employer applies (or would apply) the PCP to persons not of the same age or age group
• The PCP puts (or would put) persons of the individuals age or age group at a particular disadvantage
• The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

This means that an employer must not have any selection criteria, employment policies or other practices that, whilst appearing to be neutral do in fact disadvantage employees or job applicants of a particular age group, unless the employer can show they are justified.  In order to show that they are justified, an employer will need to show a legitimate aim (e.g. a real business need) and that the PCP is a proportionate means of achieving the aim and that there are no less discriminatory means available.

What is harassment related to age?

If conduct related to age has the purpose or effect of violating an individual’s dignity or creating a work environment that is hostile, intimidating or degrading and is offensive, intimidating or distressing it will constitute age discrimination.

Age related harassment does not need to be directed at a particular individual, it also covers things such as ‘ageist’ jokes or a general ageist culture in a work environment.  Also covered is age-related harassment by third parties such as customers, clients and suppliers.  If an employer is aware of a situation and fails to take steps to prevent it they can be vicariously liable if the harassment has occurred on at least three occasions.

What is victimisation?

Victimisation occurs where an individual is subjected to a detriment as a result of:

• Bringing proceedings under the Equality Act 2010
• Giving evidence or information in connection to proceedings under the Equality Act 2010
• Alleging that your employer or any other person has contravened the Equality Act 2010

An individual that has made an allegation or gives evidence which they know to be false will not be protected, but those who complain mistakenly but in good faith will be.

Can age discrimination ever be lawful?

There are the following exceptions where age discrimination may be lawful:

• Service-related benefits and pay scales. The Equality Act 2010 contains an exemption permitting employers to provide benefits that reward long service, for example, extra days’ holiday and incremental pay scales.
• Enhanced redundancy pay. Provided a scheme is similar to the statutory redundancy pay scheme it will be lawful.
• Provision of childcare facilities. It is lawful for an employer to offer childcare facilities for employees caring for children of a particular age group, for example, a work placed creche.

What can you do if you think you have been discriminated against on the basis of your age?

If you are unable to resolve matters informally, you should raise a written grievance setting out your complaints. You can also consider bringing a complaint in the Employment Tribunal and the deadline to do so is usually 3 months less one day from the act or last act complained of.  Where there has been a continuing act (for example if it relates to a PCP), the time limit will run from the end of the continuing act.  If your claim is successful in the Employment Tribunal, you could be awarded damages for any financial losses suffered and/or an injury to feeling award.

Injury to feeling awards are calculated in line with the Vento Guidelines set out by the Court of Appeal.  There are the following three bands (as of April 2021):

• Top band for most serious cases £27,000 – £45,600);
• Middle band £9,100 – £27,400; and
• Lowed band for the least serious cases (e.g. one off or isolated incidents) £900 – £9,100.

Examples of age discrimination