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What You Need to Know About Age Discrimination

Updated on April 19, 2017
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Kate has over seven years experience as an Employment and Personal Injury legal professional. She runs LawCat, a legal explanations website.

Under the Equality Act 2010, it is unlawful for an employer to discriminate against employees, people seeking employment or trainees because of their age. This means that an individual must not be treated unfairly in the workplace due to their relative youth or age.

However, there is sometimes confusion as to what counts as discrimination. This article will address the most frequently raised questions regarding age and its potential effect on your employment.

What Is Age Discrimination?

Age discrimination is an employer treating a member of staff or an applicant less favourably than another member of staff or applicant due to their increasing age or their youth.

An example is a redundancy situation where the employer dismisses only the younger members of staff by implementing a "first in last out" policy. Another example is forcing older workers to retire when they reach a certain age.

There are a variety of ways that you can suffer age discrimination. You can experience discrimination based on your actual age, your perceived age or your connection to someone else of a certain age.

There Is More to Age Discrimination Than Forced Retirement

One obvious form of age discrimination is an employer forcing you out of your job because you are reaching a certain age. But employers discriminate against older people in several different ways.

An employer could deny an older worker a promotion because the employer does not want to promote someone who they fear will retire soon. An employer can deny training to older workers for similar reasons. An employer may not want to spend resources training someone who they feel will soon leave the company, and an employer may assume that because a worker is a certain age they will leave soon.

It is discrimination if your employer refuses to train or promote you due to your age.

There Is More Than One Type of Age Discrimination

Type of Discrimination
Explanation
Example
Direct discrimination
When a worker is treated worse than another due to their age
An older worker having their hours reduced against their will to force them into retirement
Indirect discrimination
When an organisation has a policy that, while it applies to everyone, puts people of a certain age at a disadvantage
"Last in first out" policy making only young people redundant
Harassment
When someone is made to feel humiliated, offended or degraded because of their age
Making inappropriate remarks about a worker's age and implying their ability is lessened due to their age
Victimisation
When someone is specifically targeted due to their making a complaint about discrimination
Being punished when you have done nothing wrong

What Type of Age Discrimination Do You Feel Is Most Common?

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Age Discrimination Does Not Just Affect Older People

When people think of age discrimination what usually jumps to mind is an image of an older worker being forced out of their job by someone younger. Or an older worker being denied a promotion in favour of a younger, fitter worker.

However, many young people face age discrimination as well. Young people are usually the worst affected by redundancies. This is because they are usually the newest members of the team and employers will implement a ‘last in first out’ policy. While there is nothing inherently discriminatory about ‘last in first out’ policies, it will be discrimination if this policy only affects young workers.

Younger employees or applicants are also often denied opportunities due to a perceived lack of experience or maturity. Denying a younger employee a promotion is not discriminatory if they genuinely lack the experience or maturity to handle the increased responsibility, but an employer must show that they believe this is the case. The younger person cannot be denied the promotion simply because 'most 25-year-olds aren’t mature'.

Example: Bob and Frank both work for Mega Motors. Bob is 22 and has been with the company for six years (since he was 16 years old); he is a good employee and often beats his sales targets. Frank is 42 and has been with the company for one year; he is an average employee and regularly meets his targets but not always. A promotion becomes available, Bob and Frank both apply for the promotion, and the boss decides to give it to Frank. The boss bases his decision on his concern that Bob is young and so is less reliable than the older Frank. The boss also has concerns about promoting a younger employee over an older one.

This situation is discrimination. Bob is more suited to the role and has proven himself an excellent employee. While Frank is not a bad employee, he is clearly inferior to Bob in this respect. Frank only got the promotion because of his age or, in the alternative, Bob was only denied the promotion because of his age.

Being Treated Differently Because of Your Age Can Be Lawful.

While discrimination is unlawful under the Equality Act 2010, it is possible for treatment that is perceived as unfair to be lawful.

Direct age discrimination, where one employee is treated differently than another due to their age, can be permitted in certain situations. For it to be acceptable, the employer must be able to show that there was a real reason for the discrimination. This real reason is known as 'objective justification', and often relates to health and safety or running an efficient service.

Example: Jim is 30 and works as a doctor at a local hospital. A promotion becomes available, but one of the requirements is that the applicant must have ten years’ experience. No one under a certain age will be able to apply for this position, including Jim. Jim complains but is told that the discrimination is justifiable as there is the potential for an inexperienced doctor to do actual harm.

Example: Ralph, an older worker, works for Oil Co. He fails the physical tests required for someone to work on the rigs. Ralph complains that the tests are discriminatory as they adversely affect older workers who are less likely to pass the tests. Ralph is told that the discrimination is justifiable as the Health and Safety standards are high for such a dangerous work environment. If the requirements were not present, or were lowered for Ralph, then it could put Ralph and others at risk by him not being physically fit enough to handle the dangers.

What to Do if You Have Suffered Age Discrimination

If you believe that you have been discriminated against because of your age, then you could potentially bring a claim to the Employment Tribunal. However, bringing a claim to the Employment Tribunal can be expensive and stressful and should only be considered as a last resort. There are a variety of means available to resolve issues and disputes of this nature, including your employer's internal procedures, Mediation, and ACAS. It is always wise to consider trying to settle the matter first in ways other than legal proceedings.

Raising the issue with your employer in an informal manner should be your first action: make your employer aware of the situation and this may be enough to resolve it. If your employer does not address the issue when you raise their awareness of it, then you can raise a formal grievance with your employer. Doing this will kick-start the grievance procedure which involves a full investigation into your complaint.

If your grievance does not produce the result, you were hoping for, and you still believe you have suffered discrimination, then you should contact ACAS or a legal professional to discuss your situation further.

Conclusion

You should now have a better understanding of what age discrimination is, what kinds of behaviour can be considered discriminatory and in what circumstances unfair treatment can be lawful. You should also have an idea of what options are available to you if you have been unfortunate enough to suffer discrimination.

© 2017 Kate

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