Age discrimination

Age discrimination

The Equality Act 2010 applies to all categories of staff who may work in a business, including workers, employees, contractors, partners, or a director (collectively referred to as workers in this section), but not volunteers.

It provides legal protection to workers against age discrimination. It is, with some exceptions, unlawful to discriminate against someone on the grounds of their actual or perceived age or because they are associated with someone of a particular age.

Who does the legislation apply to?

The Act applies to all employers in the private and public sector, vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of pension schemes. It covers employees of any age and other workers, office holders, partners of firms and others. It also covers people using employment agencies or related careers guidance services, recruitment, terms and conditions, promotions, transfers, dismissals and training. It even covers post-employment acts such as the refusal to provide references to ex-employees.

What does the Act protect against?

The Act makes the following changes to the law:

Stop unjustified age discrimination in employment and work-related training

Employers must make sure that any redundancy policies do not directly discriminate against older workers. They must not discriminate indirectly – for example, by selecting only part-time workers for redundancy, when a large number of these may be older workers.

Remove the upper age limit for unfair dismissal and redundancy rights

The Act removes the upper and lower age limits for the entitlement to statutory redundancy pay. The upper age limit on unfair dismissal claims has also been removed.

You will therefore have to pay an employee the statutory minimum redundancy payment, no matter what their age, so long as they have worked for you for at least two years.

Refusing job applicants

It is unlawful for you to impose an age limit when recruiting, unless this age restriction can be objectively justified or is imposed by law.

Types of age discrimination

Direct age discrimination

This is where a worker is treated less favourably because of their actual age, when compared with another worker (known as a 'comparator') of a different age group, but who otherwise shares the same or similar (but not materially different) circumstances as the complaining worker.

The comparator's circumstances do not need to be identical (in terms of the type of job, job level, job experience and seniority, etc.), but must not be wholly dissimilar. If a suitable comparator cannot be found, then a 'hypothetical comparator' can be used instead, who would be deemed to have the same employment as the complaining worker (such as their title, role, level etc). An Employment Tribunal has the power to decide the particular circumstances of a hypothetical comparator (such as their personality).

For example, if a television presenter is suddenly after their 50th birthday moved to a position where they no longer present programmes whilst a younger co-presenter is not moved, it could be a case of unlawful direct age discrimination.

Direct discrimination also extends to protecting a worker if you treat them less favourably based on:

• Your perception of their age, regardless of whether or not the perception is correct. For example, if you refuse to promote a worker because you perceive them to be too young but promote his colleague, whose circumstances are similar to the worker, except that you do not have the same perception about their age.
• The age of another person (also known as discrimination by association). Such instances include a worker being treated less favourably because they live with someone of a particular age or you dismiss them for refusing to comply with instructions that would require them to discriminate against someone because of their age.

It also may occur if a recruitment decision contains a discriminatory statement, even when there's not an active recruitment process underway and no identifiable victim.

You could be liable for direct discrimination even if you did not intend to discriminate against your worker.

Indirect age discrimination

This will occur where you apply a formal or informal provision, criteria or practice equally to all the workers in the workplace that puts members of an age group at a particular disadvantage when compared with other workers, and a worker within that disadvantaged group actually suffers this particular disadvantage.

It also applies if a worker, who is not in the group that suffers the disadvantage, suffers the same disadvantage alongside the worker with the protected characteristic.

It does not matter whether or not this has been done intentionally.

For example, if you state that only 'recently qualified' employees can attend a managerial training course, this will be indirectly discriminatory to older employees as they are less likely to have 'recently qualified'.

Defences

You can defend a claim of direct and/or indirect age discrimination by justifying your actions or the use of the unlawful practice, provisions or criteria, if you can show that is a proportionate means of achieving a legitimate aim.

There is, however, a further exception whereby direct discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular age group for authenticity.

Harassment

Harassment is unwanted conduct towards a worker by an employer or another worker, because of that worker's actual or perceived age, or association with someone of a particular age. This applies to any conduct that violates a worker's dignity or creates an intimidating, hostile, humiliating, degrading or offensive environment even if it was not intended as such.

For example, if the unwanted conduct relates to the age of a worker's partner or friends, it may still be unlawful age harassment if they reasonably find it to be degrading or offensive. If the general conduct at the workplace is to tolerate the telling of ageist jokes, this can be age harassment if the worker reasonably considers it to be so.

If it is reasonable that the unwanted conduct has had an intimidating or humiliating effect on the worker, then you may have a harassment claim made against you (even where the harassment was unintentional). A worker will not be protected if they are oversensitive and unreasonably take offence to an innocent comment.

Workers who are not the subject of the unwanted conduct will also be able to make harassment claims for behaviour that they find offensive, even if they do not have a protected characteristic.

Employers are liable for any acts of harassment undertaken by their employees in the course of their employment – whether they knew about it or not – if they fail to take reasonable steps to prevent it. 'In the course of employment' means 'done whilst at work' or 'done while 'in a workplace-related environment'. Employers can't defend a claim of harassment by showing that they did not authorise it or on the grounds that the actions were reasonable or warranted.

Employers can, however, escape liability for harassment, if they took reasonably practicable steps to prevent it.

Victimisation

Victimisation happens when a worker is treated less favourably because:

• They have asserted their right not to be discriminated against on the basis of their age by making a complaint
• They gave evidence or information in a complaint of age discrimination made by another worker
• They have taken any other action under legislation protecting them from age discrimination
• They have alleged that you or another worker have contravened age discrimination legislation
• You believe that they have done or may do any of these things

For example, a worker might have grounds for a victimisation claim if they are prevented from going on training courses; subjected to unfair disciplinary action; or excluded from company social events because they took any of the above mentioned action.

Positive action

Positive action in training and applying for particular positions

If you reasonably think that a group of your workers who share a protected characteristic (race, age, sex, sexual orientation, marital or civil partnership status, gender reassignment, pregnancy and maternity, disability or religion or belief)...

• suffer a disadvantage connected to their protected characteristic,
• have needs that are different from the needs of those who do not have their protected characteristic, or
• have a disproportionately low participation in an activity, such as partaking in training activities, doing particular work or filling particular posts in your workforce,

...then you can take any proportionate action that enables or encourages the group of workers to overcome or minimise their disadvantage; meets their needs; or enables or encourages them to participate in the activity.

You are allowed to provide special training to members of the group. You can also encourage members of the group to apply to do particular work or fill posts (for example, by saying that applications from them will be particularly welcome).

This does not mean that you can discriminate in favour of the members of the group when it comes to choosing people to do the work or fill the posts, unless you meet the circumstances described below under 'Positive action in recruitment and for promotions', as that could be unlawful discrimination.

Positive action is not the same as 'positive discrimination', which is where members of a particular group who have a protected characteristic are treated more favourably regardless of their circumstances.

Positive action in recruitment and for promotions

The Equality Act 2010 makes it lawful for employers to take positive action when recruiting and making internal promotions in order to overcome a disadvantage connected with a protected characteristic or where the inclusion of people with the protected characteristic in a particular activity is disproportionately low. You will be able to take positive action where all of the following apply:

• There are two equally qualified candidates to choose between
• You do not have a policy of treating persons with the protected characteristic more favourably
• Positively discriminating is a proportionate means of achieving a legitimate aim.

The Act does not require employers to take positive action and it is therefore voluntary.

Positive discrimination

Positive discrimination is unlawful except if used when recruiting or promoting individuals in the limited circumstances described above.

Tribunal claims

If you dismiss an employee, or if they resign because they claim that they have been discriminated against by you, then they may make a complaint of unfair dismissal to an Employment Tribunal. In addition, they may also claim for damages on the grounds of discrimination which they will be able to do regardless of their length of service.

While there is a limit on the amount of compensation a tribunal can award for unfair dismissal, there is no limit in cases of unlawful discrimination.

Further information

For further information see the Acas guidance for employers and employees on discrimination, bullying and harassment. Acas offers free, confidential and impartial advice on all employment rights issues.