Age discrimination 

On 1 October 2006, age discrimination in the workplace was banned.

This means 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 reason for introducing this legal protection is that people are living longer, healthier lives, and therefore want to—or need to—work until an older age. Trade unions claim that age discrimination is the most common form of discrimination in the workplace.

The regulations remove the upper age limit on bringing an unfair dismissal or redundancy claim.

Once an employee reaches 65, they can legally be asked to retire. Their employer has a duty to consider the employee’s request to carry on working, but does not have a duty to explain any reason to refuse to do so.

What is discrimination?

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.

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.

Exceptions

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.

Examples of discrimination

An employer can lawfully request an employee’s date of birth, although they can not then use that information to discriminate against them.

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’.

What to do if you think you have been discriminated against

If you have been discriminated against, or harassed, it may be a good idea to make it clear to the people responsible that you’d like it to stop. You may, quite understandably, feel too intimidated or upset to do this. If so, you should speak to your manager or to a trade union representative. If it is your manager that is responsible, then speak to their manager. If this does not resolve the problem, then you can put your complaint in writing and raise a grievance through your employer’s internal grievance procedure.

As of April 2009, you no longer have to bring a grievance before lodging a claim at an employment tribunal.

If you want to bring a claim, it is a good idea to get legal advice from a professional. You can ask Citizens Advice, or a law centre, or an employment solicitor, or your trade union. The organisation, Acas, has more information about what to do if you are suffering discrimination, raising a grievance or bringing an employment tribunal claim, on its website at www.acas.org.uk.

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 advisor just in case.

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