The Equality Act 2010 makes it unlawful to discriminate against employees, job applicants and other workers such as agency workers and contractors. With school leavers and graduates competing with an ageing population who want or need to work longer, employers face an increasing risk of claims of age discrimination being brought against them by people who believe their job prospects have been adversely affected because of their age. In this blog I set out the basic principles of age discrimination, the main areas in which they are likely to affect employment practices and how employers can avoid falling foul of the law.
There are four main ways in which an employer could discriminate because of age:
• Direct discrimination – where a person is 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 a person 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 a person is subjected to unwanted conduct related to age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It may be intentional bullying but it could be much more subtle, such as teasing or using a nickname which has no malicious intent but is nevertheless upsetting.
• Victimisation – where an employee who had made or supported a complaint about age discrimination is treated unfairly.
To avoid liability for direct or indirect discrimination the employer must show 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.
All staff, particularly managers, should be made aware of age discrimination law and the types of behaviour that might amount to discrimination, harassment or victimisation.
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.
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 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.
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.
How can LincsLaw help?
If you would like specific advice on age discrimination please contact us on 01522 440512 or 01522 440515 (direct dial) or visit our website at www.lincslaw.co.uk.
Specialist Employment Solicitor
Lincs Law Employment Solicitors