Need to know: Age discrimination laws

By Adam Wayland on Small Business UK - Advice and Ideas for UK Small Businesses and SMEs

According to research from the Centre for Ageing Better, 37 per cent of worker in the 50s and 60s who had experienced age discrimination did so in the workplace.

Claire McCartney, senior inclusion adviser at the Chartered Institute of Personnel and Developement (CIPD), told People Management magazine: “Genuine inclusion with equality of opportunity boosts workforce diversity, helps address skill and labour shortages and benefits an organisation’s reputation and brand.

“Given our ageing population, the proportion of 50-plus workers in the workforce is expected to increase, especially if the retirement age rises further in the future. Therefore, it is crucial that employers establish the people management policies and practices needed to harness the skills of an age-diverse workforce.”

On the other side, 93 per cent of young people (aged 16-25) have experienced negative behaviour at work because of their age. One in ten employers have even refused to hire a young person because of their age.

Don’t be tempted to do this yourself; legal recourse can be lurking around the corner if you’re not careful.

Age is one of nine protected characteristics in the Equality Act 2010, alongside disability, sex, race, religion/belief and others – and there can be some overlap here. Age discrimination takes the form of:

• Direct discrimination – Treating someone less favourably than others because of their age
• Indirect discrimination – Implementing rules or arrangements which put certain age groups at a disadvantage
• Harassment – Unwanted/offensive behaviour towards someone due to their age
• Violation – Treating someone unfairly because they’ve complained about discrimination or harassment

Essentially, the rules prevent the use, without justification, of age or age-related criteria, nor should an employee be dismissed because of their age or because of an ageist culture in the workplace. This could be calling older employees ‘old crones’ or barbs about young people always being on their phone. Discrimination could relate to an employee’s actual age, their perceived age, the age of someone they’re associated with or general ageism in the workplace.

Age-based discrimination is most likely to occur in:

• Recruitment
• Training
• Promotion
• Pay/terms and conditions of employment
• Performance management
• Redundancy
• Retirement
• Dismissal
• Flexible working

Decisions around age-based discrimination are usually made on the grounds of ‘provision, criterion or practice’. This normally involves a company’s policies, procedures, requirements, rules or arrangements, but there is no set definition.

This could look like missing out on training because the boss deems you as ‘edging on retirement’ or if a younger worker is being paid less unfairly compared to an older counterpart.  

Is the default retirement age still around?

Default retirement age was abolished in 2011, so there is no requirement for employees to retire when they reach state pension age. Employees now have the right to decide when they retire. The only exceptions here – and where discrimination may be allowed – is if the work is physically demanding or there is a question of public safety by employing older people or keeping them on.

What are the exceptions to age discrimination rules?

Discrimination could also be justified when:

The employer can prove the direct discrimination as ‘a proportionate means of achieving a legitimate aim’. That means that the action was objective and there wasn’t a less discriminatory way to achieve the aim.

A legitimate reason is a good defence, but cost alone is usually insufficient. You must balance your business need against the discriminatory action against the employee.

If an age-related direct discrimination claim went to the employment tribunal, for example, the employer would have to show why the discrimination was beneficial to society, such as helping young people into work or helping older people stay in work. Some age-based rules are deemed necessary in most circumstances, such as having workers up to the age of 60 on the frontline in the police or fire service.

Positive action is another area where discrimination could be allowed. If an employer can argue that people from a certain age group are at a disadvantage in their organisation or are in low numbers within the organisation, they can lean more in favour of certain age groups during the recruitment process, to take one example. This positive action must be proportionate – to decide between an otherwise evenly matched pool of candidates, for instance. It’s not the same as positive discrimination where you would only take applications from that age group when other age groups could also do the work.  

As for indirect discrimination, you as the employer must be able to prove that the ‘provision, criterion or practice’ affecting the employee or group of employees of that age or age group is ‘a proportionate means of achieving a legitimate aim’.

Ageist language counts as discriminatory. It’s worth remembering that how the recipient receives the message matters more than the intent with which it was delivered.  

Getting the right balance

Away from recruitment, checking the current balance of ages in your business is a good starting point. For example, your workforce all reaching retirement age at the same time could be a problem. In cases where staff are skewed towards a particular age, there’s justification for some ‘positive discrimination’ in recruitment to redress the balance, says Dianah Worman, public policy adviser at the CIPD.

“It’s good to have a mix of ages in your workforce,’ she believes. “It can create a productive blend of the experience of older staff and qualifications and enthusiasm of younger employees. This is the fundamental thinking behind the age discrimination laws, which is worth thinking about.

“It’s going to be a hassle to take these laws into account,” she concedes, “but the consequences of not doing so could easily be a trip to an employment tribunal with the associated financial cost and damage to reputation.”

What about the rest of the UK?

In Scotland and Wales, age discrimination rules are the same. Northern Ireland has a similar law to the Equality Act 2010. Their laws are based on The Employment Equality (Age) Regulations (Northern Ireland) 2006.

For further information

The Employers Forum on Age – www.efa.org.uk
Chartered Institute of Personnel Development – www.cipd.co.uk
Advisory, Conciliation and Arbitration Service – www.acas.org.uk

See also

Three-quarters of Brits say age discrimination is common in their workplace – A staggering 70.8 per cent of UK workers reveal discrimination around age is common in their workplace

5 ways to make your website more friendly for older customers – Older shoppers spend £320bn each year, yet online sellers pay little attention to them. Paul Gray, marketing director of online fashion retailer Chums, chases the grey pound

How to support the wellbeing of younger employees – With a recent focus on zero-hour contracts in the media, we look at how you can maintain the wellbeing of your younger staff

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