Age discrimination (business)

Many employers have, in the past, opted for youth over experience. This may be partly because they know they can pay young people less, and partly because of misconceptions and myths about older employees. Whatever the reason, age discrimination was an open secret in offices up and down the country for years.

That is no longer the situation.

Since 1 October, 2006, age discrimination has been banned in the workplace. That means it is unlawful for an employer to deny someone a job, training or promotion on the basis of their age, and employees are protected from age-related harassment and victimisation.

What does this mean?

All workers—partners of firms, contract workers, employees—are protected.

Age discrimination applies to younger as well as older workers. An employer cannot specify in a job advert that he is looking for applicants above or below a certain age, unless the post qualifies for one of the exceptions to age discrimination laws.

The age discrimination protection covers recruitment adverts, hiring, training opportunities, promotion, employment terms and conditions, and redundancy.

The age of 65 years is the default retirement age in the UK. Employees have a right to request working beyond this age, and the employer must consider their request. However, the employer does not have to give reasons for any decision to turn down such a request.

Discrimination can be direct or indirect. An example of direct discrimination would be refusing to recruit someone over the age of 45. Indirect discrimination occurs where a work policy operates in such a way that people of a certain age are disadvantaged.

What are the exceptions?

In certain circumstances, age discrimination is lawful.

Age discrimination may be justified by the employer, where the employer can show it is a ‘proportionate’ means of achieving a ‘legitimate’ aim. What this means is that the employer has no reasonable alternative but to discriminate on the basis of age. This may be the case where a younger age is necessary for health and safety reasons. There must be a ‘legitimate’ aim, which means a business need.

Other exceptions include; where pay and benefits are linked to length of service (if more than five years is required, the employer may have to show additional justification); where it is a genuine occupational requirement, for example, actors playing characters of a certain age; where there’s a need for positive action to make up for previous disadvantage (as long as the job is open to all working age groups); and where the law stipulates that a person must be of a particular age.

General notes

As the law in this area is relatively new, employment lawyers are still exploring what is lawful and what is not. Consequently, depending on what cases come up, the law relating to age discrimination may change.

If you believe you have suffered age discrimination, you may be able to bring a claim against your employer. The first thing to do, as with other forms of discrimination, is to make your concerns known to your employer.

The law on age discrimination is broadly the same throughout the UK.