Since 1 October 2006, age discrimination in the workplace has been banned, meaning employees are legally protected from discrimination on the basis of their age, just as they are from sex or race discrimination.
Employees are protected from age discrimination when applying for jobs, in their terms and conditions of work, when applying for promotion or training, and in redundancy and dismissal.
The regulations remove the upper age limit on bringing an unfair dismissal or redundancy claim.
Discrimination can be direct or indirect.
Direct discrimination is the most obvious of the two, for example, an employer making an employee redundant at the age of 50 because they are considered too old, or specifying in a job advert that applicants should be “young” or a “recent graduate”. It is best practice for employers to remove the date of birth or age requirement from application forms, and instead include these in a separate diversity monitoring form.
Direct discrimination would cover an employer deciding, on the grounds of age, not to employ someone, to dismiss them, to refuse training or promotion, or give them less favourable terms and conditions than other employees./p>
Indirect discrimination is less obvious, for example, making ageist comments in the workplace or introducing a workplace policy that has the effect of excluding people above a certain age. Indirect discrimination can cover any criterion, provision or practice which disadvantages people of a particular age unless justified. For example, social excursions that exclude people of a certain age could be seen as discriminatory.
It is also unlawful, under the age discrimination regulations, to subject someone to harassment in the workplace because of their age. This is unwanted conduct that creates a hostile or intimidating environment for them.
It is unlawful to victimise someone because they have made, or intend to make, a complaint about age discrimination, or give evidence in relation to an age discrimination claim.
There are occasions when an employer can discriminate against someone on the basis of their age, but the employer must show an “objective” and sound business reason.
For example, where an actor is required to play a character of a particular age, the employer can lawfully discriminate on the basis of age. In this situation, the employer can show there is a “genuine occupational requirement” that a person must be of a certain age.
The employer must show the discrimination is a proportionate means of achieving a legitimate aim, such as improving health and safety.
There are also some exceptions to the requirements; for example, pay related to the minimum wage, or pay increases related to length of service that are designed to reflect the employee’s level of experience.
Where a person is older than, or within six months of, retirement age, the employer can lawfully refuse to recruit or train that person.
When selecting employees for redundancy, the employer should avoid using length of service or any “last in, first out” policy in its selection criteria, as this could be seen as discriminatory.
Inappropriate age-related jokes, exclusion from social activities, or harassment on the basis of age, could be seen as discriminatory even if the conduct is not aimed at any particular person. It is enough that the culture of the workplace is seen as discriminatory.
Where an employee has made a complaint about discrimination, the employer has a duty to protect them from detrimental treatment as a result. For example, the employee should not be denied promotion, teased about their complaint or labelled a “troublemaker”.
If you have been discriminated against, or harassed, you should:
If you want to bring a claim at an employment tribunal, first get legal advice from a professional. You can ask:
Note: The organisation ACAS has more information about what to do if you are suffering discrimination, raising a grievance or bringing an employment tribunal claim.
You are entitled to continue working for your employer while bringing the action and you should not be subjected to any intimidation or ill treatment while your case is pending. If you are, you could raise this as part of your case. If you are dismissed for raising your grievance, you can bring a claim for unfair dismissal.
Your claim needs to be brought to the employment tribunal within three months of the behaviour you are complaining about. This deadline is important, as your claim may be struck out otherwise. If you have missed the deadline, double-check with an employment adviser, just in case.
Employer used to be able to force employers to retire when they reached the default retirement age (usually 65) but this is no longer legal.
Most people can now work for as long as they want to, although some employers are allowed to set a compulsory retirement age if they can clearly justify it (eg, for health and safety reasons).
It is up to the employee to raise the matter with their employer of when and how they would like to retire. This could include phasing retirement by working flexibly.
Employers may or may not be able to agree to such requests. If an employee is unhappy with their employer’s decision, they can take the matter to an employment tribunal.
Retirement is a form of resignation - employers and employees must follow the appropriate procedures for this.
Age discrimination (business)
I am being bullied, I am a victim of discrimination (employees)
Overview of sex discrimination in employment
Overview of race discrimination
Disability discrimination (business)
Choosing an employment lawyer
Advice on employment rights
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