What is Age Discrimination?

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Age discrimination is protected against both for current employees, and also job applicants.

Age discrimination is where you are treated unfairly at work because of your age.  It can happen where you are younger or older than the person treating you unfairly. It can happen where decisions are made about your employment because of your age.  It is also known as ageism.

What is Age Discrimination?

The Equality Act sets out the law of age discrimination.  It prohibits discrimination because of your age. All employees, workers and job applicants are protected from age discrimination.

You are protected from unfair treatment:-

  • because you are in one age group rather than another, or
  • because you are thought to be of a particular age, or
  • because you’re associated with someone of a particular age.

In line with other ‘protected characteristics’ (types of discrimination eg age, disability, race etc) you are protected from:-

  • Direct discrimination – where you are treated less favourably than someone else because of your age, or because you are thought to be of a particular age, or because you’re associated with someone of a particular age.
  • Indirect discrimination – where the employer has a “provision, criterion or practice” that applies to a group of employees (or applicants), but it puts those of a particular age at a particular disadvantage compared to others of a different age, actually puts you at that disadvantage, and it can’t be objectively justified.
  • Harassment – where unwanted conduct has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for you.
  • Victimisation – where you suffer disadvantage or harm because of (for instance) complaining about discrimination.

There are circumstances where an employer is given the chance to justify age discrimination. For instance, if your employer can objectively justify its actions by showing that what they did was a proportionate means of achieving a legitimate aim, they will have a defence. Harassment and victimisation can’t be justified.

Examples of Age Discrimination

Examples of ageism include:-

  • Where an employee is selected for a spurious redundancy because they are older and perceived as less able to learn how to use new technology in the workplace
  • Where an employee is rejected for promotion because they are seen as too young to carry gravitas
  • Where an applicant is rejected for a job because it’s assumed that they are close to retirement
  • Where an employee is bullied and harassed because of the age of their partner.

How do I report discriminatory behaviour?

The first step, as with all potential complaints about something at work, is to check your employer’s grievance procedure, which is usually in a staff handbook. The grievance procedure should tell you who you need to raise things with, and what information to provide.

Generally, a grievance should be sent to your line manager and/or HR.  If your complaint is about your line manager’s treatment of you, then your grievance should usually be sent to their own line manager and HR. Sometimes it’s appropriate to copy other managers into your grievance, but this will depend on the circumstances and what you’re complaining about.

From there, the grievance procedure will lay out what happens next, but generally your employer should investigate your complaint and have a meeting with you to discuss things fully. Often someone will be appointed to investigate your complaint. Sometimes that person will also run the grievance meeting, but it could be someone else.  As long as it’s dealt with by someone appropriate, that’s the main thing. If you aren’t happy with the outcome, you should be given a chance to appeal against the grievance decision.

Age discrimination is not just because you are considered ‘too old’ – it applies to age generally.

How do you prove Age Discrimination?

In an Employment Tribunal claim, to win, you need to have enough evidence to satisfy the Employment Tribunal that without an alternative explanation from your employer, you’ve been discriminated against because of your age.

For instance, you might be unsatisfied with being selected for redundancy, but if your employer can show that you were selected for a non-discriminatory reason based on objective selection criteria, and not because of your age, then you wouldn’t succeed in an age discrimination claim.

How do you settle unfair discrimination?

Most claims settle before reaching a final Employment Tribunal hearing.  This is for a variety of reasons.  For present purposes, the point is that at some stage, it’s likely the parties will take a view on the evidence that they’ve both got, and negotiate a settlement deal so that the matter never reaches an Employment Tribunal hearing.

In other words, rather than letting an Employment Tribunal decide on whether you’ve satisfied the requirement to prove that age was the reason for the unfair treatment, there is a decision to be made over how much you’re willing to settle for.  That decision will be based on the strength of your evidence compared to your employer’s and the relative legal costs of settling or going all the way to a hearing.

So, if your employer hasn’t got documentary records showing their selection process and everyone’s scores on objective selection criteria, or perhaps there are email communications that talk of an intention to dismiss you, they may be keener to settle – and for a higher amount. On the other hand, if they have evidence that they conducted a fair redundancy consultation process, and can show you everyone’s scores across objective selection criteria, you’ve got a much smaller chance of successfully proving that you were selected for redundancy because of your age.

Employment Law Solicitor

If you need more help with the subjects covered here then do reach out to our expert solicitors.  You can leave a comment below,  email employment@qlaw.co.uk or call us on 03300 020 863.

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