Age discrimination at work - a guide

Age discrimination solicitors

You have the right not to be discriminated against at work because of your age (for example, because you are too young or too old)

If you would like to speak to a specialist employment solicitor regarding your situation then please feel free to call us on 020 3397 3603, submit an enquiry, or email our team.

Read our guide on age discrimination in the workplace below

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What is age discrimination in the workplace

Age discrimination in the workplace occurs if you are treated unfairly in the workplace because of your age, or because of the age of someone else that you are associated with (such as a child or a partner).

You are protected against age discrimination in the workplace under the Equality Act 2010. Under the Equality Act 2010 you must not be discriminated against because of your (or an associated person’s) protected characteristic.

“Age” is a protected characteristic under s.5 of the Equality Act 2010 and can take the following forms:

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimization

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.

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

  • An employer rejects a candidate for a job because she is over 50 and he thinks she will not portray the youthful image he wants for the business.
  • An employee is overlooked for promotion because he is 61 and the employer thinks he’ll be retiring soon.
  • A 25 year old is rejected for a post selling insurance because the employer wants an older salesperson with ‘gravitas’.
  • An employer does not extend an invitation to a social event to an employee and her husband because her husband is much older than her and would not ‘fit in’ with the other employees.

Examples of successful age discrimination claims in the Employment Tribunal

  • Ms Carolina Gomes v Henworth Limited t/a Winkworth Estate Agents and Mr G Gold (ET/3323775/2016) – in this case the Employment Tribunal held that an employee had been discriminated against because of her age when her boss told her she would be better suited to a traditional estate agency (Employment Tribunal judgment, our analysis of this case)
  • L Roberts v Logo Design Grp Ltd: 2404024/2017 – in this case the Employment Tribunal awarded a claimant £200,000 after he succeeded with his age discrimination claim (Employment Tribunal judgment, our analysis of this case)

Age discrimination cases in the newspapers

  • Asda worker wins age discrimination case against supermarket (The Independent)
  • Man, 26, loses age discrimination case after boss dubbed him a ‘demanding millennial’ (The Mirror)
  • Plumber called ‘Half-dead Dave’ by colleagues wins age discrimination claim (Mail Online)
  • 14-year-old waitress sacked because of her age was discriminated against, tribunal rules (Mail Online)
  • Asking someone in their sixties when they are going to retire is age discrimination, an employment tribunal ruled (The Times)

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