The Equality Act 2010 makes it unlawful to discriminate against employees, job applicants and other workers such as agency workers and contractors. Age discrimination occurs if you are treated unequally because of your age or because you belong to a particular age group. Age discrimination is unlawful, unless it can be justified.
Overview of Age Discrimination
There are four main ways in which an employer could discriminate against you because of age:
- Direct discrimination – where you are treated less favourably because of age without objective justification. For example, setting an upper or lower age limit for a particular job may be direct discrimination against you if you are outside the age band;
- Indirect discrimination – where an employer has a provision, criterion or practice (PCP) that has a greater adverse impact on workers in one age group than those in another and the employer cannot show that the PCP is objectively justified. For example, restricting a post to ‘recent graduates’ is likely to indirectly discriminate against a worker over 30, as most recent graduates are likely to be in their 20s.
- Harassment – where you are subjected to unwanted conduct related to age that has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This may not be intentional bullying. It could be as subtle as teasing or using a nickname which has no malicious intent but is nevertheless upsetting.
- Victimisation – where you make or support a complaint about age discrimination and are treated unfairly.
An employer can avoid liability for direct or indirect discrimination by showing that its actions or PCP are a proportionate means of achieving a legitimate aim. Legitimate aims include, for example, rewarding experience or maintaining health and safety.
Age Discrimination In Recruitment, Promotion and Training
Employers should carefully consider the language they use in job advertisements, job descriptions, person specifications, interview questions and publicity materials. For example, adverts should not set a preferred age range for a job or use language such as ‘mature’, ‘youthful’ or ‘recent graduate’ which may impact adversely on certain age groups. It is preferable to describe the level and kind of experience needed for the job, although specifying an age range might be permissible if it is a genuine occupational requirement.
Age or date of birth should generally be removed from application forms. Even asking for dates of qualifications or previous employment may give away age and should be avoided unless their inclusion can be objectively justified.
Questions asked on forms and at interview should focus on the applicant’s skills, abilities and potential.
The same principles apply to promotion and training. Employers should ensure a fair approach and not give preferential treatment to someone on grounds of their age although in certain circumstances the law may allow employers to use positive action in favour of underrepresented age groups in a workforce to assist in redressing the balance.
Pay Scales
The Equality Act 2010 permits employers to pay employees of different ages different rates of pay providing this is based on the National Minimum Wage pay structure. Setting any other pay scales based on age would be directly discriminatory and unlikely to be justified. Pay scales that use length of service as a criterion for progression may be indirectly discriminatory as younger workers are more likely to have shorter service.
Redundancy
Redundancy selection should not be based directly or indirectly on age unless objectively justified in each case. Statutory redundancy payments however can be and are calculated by reference to age and length of service. If an employer has a redundancy pay scheme that is more generous than the statutory scheme it should closely mirror the statutory age bands and multipliers. Redundancy schemes that do not follow this requirement are likely to be unlawful unless they can be objectively justified.
Retirement
The default retirement age was abolished in 2011. Therefore compulsory retirement of a worker once they reach a particular age is, in principle, directly discriminatory unless it can be objectively justified.
What should you do if you think you have been discriminated against?
If the issue is with your current employer, try raising the matter informally with your line manager first. If that does not resolve the matter you may wish to raise a formal grievance. Further information can be found on our website at https://lincslaw.co.uk/blog/raising-a-grievance-with-your-employer/
You may have a claim for age discrimination. You should take legal advice at the earliest opportunity. Action must be taken within three months of the discriminatory act. If your claim is successful, you may be awarded compensation for financial loss and injury to feelings.
Lincs Law Employment Solicitors Can Help You
If you have an employment law issue please contact one of our specialist employment law solicitors at LincsLaw on 01522 440512 or visit our website at www.lincslaw.co.uk for more details on how we can help you.
Kathryn Bolton
Specialist Employment Law Solicitor
LincsLaw Employment Solicitors
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