Age Discrimination

Examples of Age Discrimination

Examples of age discrimination can include:

• Being considered too young or too old for a specific role
• Companies only hiring younger employees
• Being turned down for a promotion
• Training is only being offered to younger employees
• Being paid less wages due to age

Employment Tribunal cases involving age discrimination

• In the case of Mr M Bandura v Mr M Fernandez, Mr Bandura was awarded more than £120,000 because his employer replaced him with a younger employee after he went on temporary sick leave.
• In the case of Ewart v University of Oxford, Professor Ewart was reinstated as a senior lecturer and awarded £30,000 and back pay for the salary he would have received had he not been dismissed.
• In the case of Cassidy v Daimler Foundation, after a successful first shift, Miss Cassidy was told she could not continue working at the café as she was too young. The Tribunal awarded her £2500 for injury to feelings and direct age discrimination and an additional £300 in interest.

Is it Easy to Prove Age Discrimination?

Age discrimination may not be evident as often it is not conscious. For example, you may be the oldest team member at work and are often excluded when your younger team members have lunch or dinner together. Then, a major project is given to a younger colleague without explanation. You may not have any evidence of ageist comments, but you feel that age is a factor in this decision. A discriminatory reason for your employer’s conduct does not need to be the only or the main reason for the discrimination; that it is a contributing cause is enough.

Normally, the Tribunal will have to determine what was in the mind of the individual accused of discrimination, and the onus of proof is on your employer to show that there was no discrimination. In every case, it is essential to consider why an employee received less favourable treatment and whether it was due to age or another reason.

Who is Protected by the Equality Act?

The Equality Act 2010 applies to all employees with fixed and indefinite term contracts, job applicants, trainees, agency workers, directors and the self-employed. The Act does not only protect older employees but younger ones as well and covers all areas of employment including:

• Recruitment
• Promotion
• Retirement
• Training
• Provision of benefits
• Transfers
• Pensions
• Dismissals

The Types of Age Discrimination

Under the Equality Act 2010, there are four main types of age discrimination:

1. Direct discrimination
2. Indirect discrimination
3. Harassment
4. Victimisation.

Direct Age Discrimination

Direct age discrimination occurs when you have been or potentially would have been treated less favourably than others due to your age, your perceived age or the age of someone you are associated with.

This type of discrimination requires a comparator, i.e., a colleague who does not share your age characteristic but is similar in other aspects, to be able to display a disadvantage to yourself due to you being a different age. For example, if your employer were to promote a colleague instead of you because they were younger, you could claim direct age discrimination. However, you should note that your employer can objectively justify direct discrimination.

Indirect Age Discrimination

Indirect age discrimination occurs where a practice, provision or criterion implemented by your employer and applies equally to all persons puts you at a disadvantage because of your age compared to other employees.

It does not matter if the purpose of this practice was to be discriminatory or not. As with direct discrimination, your situation must be compared with another colleague who doesn’t share your age but is similar in other areas. Additionally, indirect discrimination can also be objectively justified by your employer

Age-Related Harassment

Age-related harassment occurs when you are subjected to offensive, intimidating, or distressing behaviour which is based on your age and violates your dignity or creates a working environment which is hostile, intimidating or degrading. Examples could include comments about signs of ageing, such as wrinkles, baldness, age-related nicknames, and being ignored or excluded from after-work drinks because of age.

Being subjected to pressure to retire could also amount to age-related harassment. Age harassment doesn’t necessarily have to be directed at a specific individual or individuals; it can also be the general culture of the firm, such as the telling and allowing of ‘ageist’ jokes in the office.

As with direct discrimination, harassment can include age discrimination based on your perceived age or the age of someone you associate with, such as an elderly friend or relative who works with you and is referred to as a ‘dinosaur’. Thus, it does not matter if the behaviour is not directed at you or you do not share the protected characteristic, only that you find the behaviour offensive.

Furthermore, the Equality Act has extended the law on age-related harassment to include third parties, i.e., unwelcome conduct from customers, clients or suppliers your company does not employ. This means that if your employer is made aware of the situation and fails to take strides to prevent third-party harassment from happening, then they could be liable.

Victimisation

Victimisation occurs when you have suffered a detriment, which the law defines as something that causes disadvantage, harm, or loss as a result of you having made, tried to make, helped someone else to make or presumed to have made, a complaint or grievance of age discrimination under the Equality Act. An example might be where you are ignored or denied training because you supported an age discrimination claim. Unlike direct and indirect discrimination, comparing your treatment to a colleague who has not done one of the above-mentioned actions is not required.

Further Reading: Take a look at our guide on Victimisation

Action You Can Take if You Think You Are Being Discriminated Against Because of Your Age

If you feel you are being discriminated against because of your age and are still in employment, you should first try to resolve the matter informally by speaking to your line manager. If this proves unsuccessful or you feel the situation is too serious to be solved informally, you should lodge a formal grievance. Your employer will be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal while you are still employed.

Suppose you have already been dismissed and think you have been discriminated against because of your age. In that case, you can lodge a claim for unfair dismissal and age discrimination in the Employment Tribunal. Any claim must be issued within three months minus one day of the date of dismissal or alleged discriminatory act. It is mandatory to go through ACAS’s early conciliation before you can file a claim to the tribunal.

Making an Employment Tribunal Claim for Age Discrimination

What Can You Do if You’re Victimised for Making a Complaint of Age Discrimination?

If you feel you have been victimised, you should formally or informally raise the issue with your employer. Your employer should take any allegation of victimisation very seriously and look into it as soon as possible.

If you have made a formal complaint and the problem is unresolved, you can consider making a claim to an employment tribunal. You should note that there are strict time limits for bringing a claim. In most cases, you have three months minus one day from the date the final act of discrimination occurred. If the time limit has passed, you can still claim to an employment tribunal. However, it is up to the judge to decide whether or not they will allow your claim.

How Much Could an Age Discrimination Compensation Claim Be Worth?

Unlike an unfair dismissal claim, there is no maximum on the amount of compensation the employment tribunal can award for age discrimination. Compensation normally includes:

• loss of earnings which can include past or future losses, unpaid holidays, bonuses, stock options or notice pay;
• award of damages for injury to feelings to compensate you for the frustration, worry, mental distress, unhappiness, stress and depression suffered;
• a personal injury, whether this is due to depression or physical injury;
• aggravated damages which are awarded in the most serious cases where your employer’s behaviour has aggravated your injury;
• punitive damages which are a very rare award and only given in circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;
• interest, which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.

Can an Employer Make you Redundant Because you’ve Reached the Age of 65?

An employer can only make you redundant for a genuine reason, and even after following the correct procedure, they cannot dismiss you because you have reached a certain age. There is no default retirement age; however, an employer can set a retirement age if it meets legal requirements. This means that an employer must be able to justify its potentially discriminating actions by proving a legitimate aim to the employment tribunal.

Further Reading: Take a look at our guide on Redundancy

Is Succession Planning Age Discrimination?

Succession planning is the practice by which an employer puts contingency plans in place to ensure the company continues to run as normal if vital employees retire or leave the company. This generally includes identifying, training, and developing employees who could replace a colleague who is in a vital role if it was needed. Frequently, succession planning can lead to age discrimination as planning for this type of situation means employees’ ages must be considered, and this runs the risk of discrimination taking place.

Examples of age discrimination in succession planning can include situations where an employer:

• makes room for a new, younger employee by removing a current older employee,
• decides to only hire employees of a certain age to a role
• does not consider hiring someone as a possible successor because they are over a certain age even if they are the best candidate for the role

These examples are likely to be considered age discrimination unless they can be objectively justified. This is where an employer can show their actions were done as a proportionate means of achieving a legitimate aim. Employers can try to justify direct or indirect age discrimination in the workplace; however, age-related harassment can never legally be justified. While the current government guidance implies that employment planning may be an objective justification, in practice, it is likely difficult to remove a current employee from their role because of long-term succession planning.