Age Discrimination in the Workplace

Age Discrimination

Age discrimination in the workplace is a significant concern, with over half of those aged over 50 surveyed in September 2021 believing their age negatively impacted their employment prospects. In the UK, age discrimination is primarily governed by Part 5 of the Equality Act 2010 (EqA 2010), which prohibits various forms of unlawful conduct in employment. Age is one of nine "protected characteristics" under the EqA 2010.

Scope of Age Discrimination

The EqA 2010 protects a broad range of individuals in employment, occupation, and vocational training, including job applicants, employees, workers, and self-employed individuals whose contracts require them to perform work personally. It also covers contract workers, police officers, partners, barristers, office holders, and those seeking vocational training or professional qualifications. Employers can be held liable for discriminatory or harassing acts by their employees, unless they have taken reasonable steps to prevent such conduct.

Types of Age Discrimination

Under the EqA 2010, it is unlawful for an employer to engage in four main types of age discrimination:

1. Direct Age Discrimination

This occurs when an employer treats a job applicant or employee less favourably than others because of age. Unlike other protected characteristics, direct age discrimination can potentially be objectively justified if it is a proportionate means of achieving a legitimate aim.

Comparators

A claimant must show less favourable treatment compared to a real or hypothetical person of a different "age group" whose circumstances are not materially different, except for age. An "age group" is broadly defined and can refer to a specific age or a range of ages (e.g., over-fifties, 21-year-olds, under-fifties). Circumstances intrinsically related to the comparator's age should be ignored. While closeness in age doesn't automatically defeat a claim, it requires particular scrutiny of evidence.

"Because of" Age

The less favourable treatment must be due to the claimant's age, whether consciously or subconsciously. If a criterion directly distinguishes people based on a protected characteristic, the reason for applying it (e.g., cost due to age-related benefits) is irrelevant; it's prima facie direct discrimination. However, treatment based on seniority or length of service, while potentially related to age, is not necessarily "because of" age.

Association and Perception

Less favourable treatment can also be direct age discrimination if it's because of the age of someone the employee associates with (e.g., young children, older partner) or because the employer perceives the employee to be of a certain age (e.g., "too young" for a senior role).

Age Discrimination Examples

Cases include dismissing employees for being "too young" (e.g., 18-year-old dismissed based on stereotypical assumptions, 14-year-old due to health and safety concerns) or "too old" (e.g., 63-year-old receptionist replaced by a "young, fit blonde"). Other examples involve stereotyping (e.g., assuming older managers are "past their best" or wouldn't adapt to change), using recruitment criteria like "youthful enthusiasm", stopping permanent health insurance (PHI) payments at a certain age, refusing voluntary redundancy to older workers due to higher costs, or making ageist comments (e.g., "grandmother," "Alzheimer's again," "jumped up, know it all, spoilt child"). Suggesting retirement to an older worker with dementia was also found to be direct age discrimination.

2. Indirect Age Discrimination

This occurs when an employer applies a provision, criterion or practice (PCP) that is ostensibly neutral but disadvantages members of a particular age group when compared to others, and the claimant suffers that disadvantage. Like direct discrimination, indirect discrimination can be objectively justified.

Group and Personal Disadvantage

The claimant must show that the PCP puts their "age group" (broadly defined) at a "particular disadvantage," and that they personally suffer that disadvantage. A causal connection between the PCP and the disadvantage is essential.

"Same Disadvantage" (Section 19A EqA 2010)

Introduced on 1 January 2024, this allows a claimant to bring an indirect discrimination claim even if they are not a member of the disadvantaged group, provided they can show they have been disadvantaged in a substantively similar manner to the disadvantaged group.

Indirect Age Discrimination Examples

Requiring at least five GCSEs for a position could disadvantage those born before 1971 who took O-Levels. A requirement for eight years' industry experience could disadvantage younger people. Other cases include job adverts seeking "less than five years' experience", requiring a degree (disadvantaging older workers), requiring employees to sign new contracts that remove benefits built up through longer service (disadvantaging older workers), and inadequate COVID-19 safety measures disadvantaging older teachers.

3. Harassment Related to Age

This involves unwanted conduct related to age that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. The conduct doesn't need to be intentional; its effect can constitute harassment.

The conduct can be "by reason of age" (e.g., shunning an older co-worker as "too old") or "related to age because of the form it takes" (e.g., telling ageist jokes).

It does not need to relate to the victim's age; harassment by association (e.g., teasing an employee about their "old fogey" father) or directed at others but affecting the claimant (e.g., witnessing a manager humiliate an older colleague) can be harassment.

Age-related Harassment Examples

A manager telling a 60-year-old that she is "out of touch" and the store needs "fresh blood", managers making jokes about an employee having Alzheimer's disease, and repeatedly suggesting retirement to an older employee with dementia after she had rejected it. Harsh criticism or threats directed at younger employees because they are an "easier target" can also be age-related harassment.

4. Victimisation

This occurs when someone is subjected to a detriment because they have done, intend to do, or are suspected of doing, a "protected act" under the EqA 2010. Protected acts include bringing discrimination proceedings, giving evidence in such proceedings, or alleging a contravention of the EqA 2010.

Protection applies even if the allegations are mistaken, as long as they are made in good faith; however, it does not apply if they are known to be false. There is no time limit for victimisation to occur after the protected act.

Example: An employer punishing an apprentice for complaining about older employees making fun of him by cancelling his training course.

Objective Justification

Both direct and indirect age discrimination can be objectively justified if the treatment or PCP is a "proportionate means of achieving a legitimate aim". However, the nature of a "legitimate aim" differs:

Legitimate Aims for Direct Age Discrimination

These must be "social policy aims" or objectives of a "public interest nature," such as those related to employment policy, the labour market, or vocational training. Purely individual employer reasons, like cost reduction or improving competitiveness, are generally not sufficient on their own. Examples include promoting "inter-generational fairness" (e.g., sharing employment opportunities, promoting access for younger people, workforce planning, ensuring a mix of generations) and "dignity" (e.g., limiting the need to expel partners through performance management). Other examples recognised by ECJ case law include ensuring a high quality of service and avoiding disputes over fitness to work.

Legitimate Aims for Indirect Age Discrimination

These only need to amount to a "real business need"; there is no requirement for wider public interest or social policy aims. Cost considerations, while not a sole justification (the "cost-plus" rule), can be taken into account along with other factors.

Proportionality: The measure must be appropriate and necessary for achieving the legitimate aim, going no further than required. This involves a balancing exercise:

• Is the objective sufficiently important to justify limiting a fundamental right?

• Is the measure rationally connected to the objective?

• Are the means chosen no more than is necessary to accomplish the objective? Case examples for justification cover a wide range, from pension scheme changes, compulsory retirement ages, length of service criteria in redundancy, to recruitment ages for specific, physically demanding roles. The evidence presented by the employer and consistency in applying policies are crucial in determining proportionality.

Exceptions (When Age Discrimination May Be Lawful)

The EqA 2010 provides specific exceptions where age-related treatment is lawful:

Service-Related Benefits and Pay Scales

Employers can provide benefits (like extra holiday, incremental pay) that reward long service, even if they indirectly discriminate against younger workers. For service periods up to five years, this is generally lawful. For over five years, it must "reasonably appear" to the employer to fulfil a business need (e.g., encouraging loyalty or motivation).

National Minimum Wage (NMW) and Age-Related Pay

It is not unlawful discrimination to pay different rates of NMW based on age bands as set out in the National Minimum Wage Regulations 2015. This exception is generally limited to low-paid workers and requires adherence to the NMW age bands.

Redundancy Pay

Statutory Redundancy Pay

The calculation of statutory redundancy pay, which uses multipliers based on age and length of service (e.g., 1.5 weeks' pay for those 41 or over), is not unlawful age discrimination because it is justified by the difficulty older workers face in finding new employment.

Enhanced Redundancy Pay

The EqA 2010 includes a specific exemption for enhanced redundancy schemes that closely mirror the statutory scheme but may be more generous (e.g., removing the statutory cap on a week's pay). Non-exempt schemes must be objectively justified, often by aiming to cushion older workers and reward loyalty.

Insurance Benefits

It is lawful for employers to cease offering insurance benefits (life assurance, health insurance) to employees when they reach the greater of age 65 or state pension age.

Provision of Childcare Facilities

Employers can lawfully provide childcare facilities for employees caring for children of a particular age group.

Occupational Requirements (OR)

In limited circumstances, an employer can stipulate that, due to the nature or context of the work, being of a particular age or age group is an occupational requirement. The application of this requirement must be a proportionate means of achieving a legitimate aim. Examples include maximum recruitment ages for physically demanding roles like firefighters or police officers.

Positive Action

Employers can take proportionate measures to address disadvantages, particular needs, or under-representation among persons with a protected characteristic. This includes general positive action (e.g., targeted IT training for over-60s) and positive action in recruitment and promotion (treating a person with the characteristic more favourably if they are "as qualified as" others).

Other Exceptions

These include safeguarding national security, providing benefits to the public (where an employee is denied benefits solely because of their employment), and complying with other statutory provisions.

Impact of EU Law Post-Brexit

While the UK has left the EU, the EqA 2010 was partly enacted to implement EU directives like the Equal Treatment Framework Directive (2000/78/EC). UK tribunals and courts are still bound by assimilated EU case law until a senior court departs from it. The wording and purposes of the Framework Directive may still aid interpretation of the EqA 2010, though domestic legislation now takes precedence. The Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) ended the supremacy of EU law in the UK from the end of 2023, renaming retained EU law as assimilated law. Specific principles from retained EU case law have been reproduced in domestic law.

Retirement and Workplace Discussions

Since the default retirement age (DRA) was repealed on 6 April 2011, any compulsory retirement age is prima facie direct age discrimination and must be objectively justified. Employers must be able to show that the chosen retirement age serves a legitimate aim (such as workforce planning, succession planning, inter-generational fairness, or avoiding difficult performance management) and that it is proportionate.

Employers should have effective workplace procedures and maintain open communication with older workers about their future plans. While general discussions about future aspirations are good practice, care must be taken to avoid discriminatory implications. For instance, repeatedly suggesting retirement to an older worker, especially if tied to perceived declining abilities, can be discriminatory and harassing. If an employee's performance declines, standard performance management or ill-health policies should be applied consistently, regardless of age, and medical advice sought if appropriate.

Read more about Retirement Discrimination.