Under the Equality Act 2010, discriminating against a worker or a job applicant because of their age is almost always unlawful. Understanding the basic legal position will help you work out whether you might be discriminating and plan how to avoid it. Here are some fundamentals to guide you:
It’s not just older workers
Age discrimination applies to everyone, so you can just as easily discriminate against a younger employee as an older one. If someone’s age is directly or indirectly relevant to the treatment they are receiving, this is discrimination and, in most cases will be unlawful.
Direct age discrimination is where someone, or a group of people, is treated less favourably because of their age. To claim direct age discrimination the person doesn’t actually have to be of the group being treated less favourably – it could be because of their perceived age, such as looking too old or too young; or could even be by association – being treated less favourably because of the age of a family member would count.
Typical examples of direct age discrimination would include not considering younger workers for a promotion involving supervisory responsibilities on the assumption an older employee would be better, or assuming a role involving learning new skills and more modern technology shouldn’t be given to an older worker because of the perception they will not learn the technology quickly.
If an employer makes a decision and applies what is known as a “provision, criterion or practice” to everyone, but this puts people of a certain age group disproportionately at a disadvantage compared to other age groups, that would be indirect age discrimination.
Recruitment is a good example of potential indirect age discrimination – requiring a fixed number of years’ experience, for example, disadvantages younger workers who are less likely to have achieved this (but could have acquired the necessary skills and experience in a shorter timeframe).
Harassment is where someone suffers conduct relating to age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Someone can bring a complaint of harassment even if they are not the one being directly subjected to the treatment, i.e. if they witness it in the workplace they could complain even if the victim does not. Similarly to direct and indirect age discrimination, harassment could also be because of perceived age or by association.
The intention of the harasser doesn’t matter – if the person bringing the complaint reasonably perceives it as having the effect of violating their dignity or creating a hostile environment, that will be enough – the perpetrator saying they were joking, for example, will not be a suitable defence, and teasing and ‘jokes’ are often part of harassment.
Victimisation is where someone suffers unfavourable treatment because of having made a complaint, or given evidence in a complaint, about age discrimination or harassment.
A manager treating an employee less favourably because the manager is angry that the employee raised an age discrimination grievance, for example, would be victimisation, and could involve giving a negative performance review or just being generally unpleasant as a response to the complaint.
When is discrimination lawful?
Harassment and victimisation on the grounds of age are always unlawful, but sometimes direct or indirect discrimination are lawful, if the employer is trying to achieve what is called a “legitimate aim” and the measure the employer is taking is is a proportionate means of achieving that aim.
In practice this means that for age discrimination to be lawful, you’ll need a genuine business objective you are trying to achieve, and the action you are considering must help achieve this objective sufficiently to balance out the discriminatory effects of it, and you must have considered potential other solutions that didn’t involve discrimination.
Examples of justifiable reasons might include compliance with the law (if the role involves performing activities that are age-restricted such as serving alcohol would be an example), or making statutory redundancy payments which are calculated partly by reference to the employees’ age. Service-related benefits are also sometimes justifiable even though older workers are more likely to achieve longer service than younger workers.
If you need any further advice on the legal basics regarding age discrimination, do get in touch.