Age Discrimination at work - How to promote anti discriminatory practice

Age is a protected characteristic under the Equality Act 2010 (the Act). This protects against direct and indirect discrimination, victimisation and harassment of employees on the grounds of age (whatever that age may be). Where the age discrimination provisions differ slightly from the other strands of discrimination protection is that it is possible to seek to objectively justify direct as well as indirect age discrimination, so employers need to consider the reasons underpinning their decisions.

When did age discrimination become unlawful?

Provisions protecting against age discrimination were first introduced in 2006, the provisions were then included in the Act when all the strands of discrimination were brought together in one piece of legislation.

What is age discrimination?

Direct discrimination

This takes place when there is less favourable treatment because of age. For example, an employer may believe that everyone’s memory deteriorates with age and therefore assumes that a 60 year old manager can no longer be relied on to do their job competently. As a result, the employer does not mention a promotion opportunity to them, this is likely to be less favourable treatment because of age.

Indirect discrimination

The concept of indirect discrimination is concerned with acts, decisions or policies which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging particular groups. For example, job adverts only placed on websites aimed at students will indirectly discriminate against potential older applicants.

Harassment

Harassment in the workplace is often thought to be limited to office “banter” or misplaced comments, but is more far reaching than this. Harassment can range from bullying to apparently “meaningless” comments. It can undermine confidence, lead to stress and affect the performance of all those involved.

The general definition of harassment is that it is unwanted conduct related to age which has the purpose or effect of violating the dignity of the person involved, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Whilst the conduct must be unwanted, it is not necessary for the complainant to have previously indicated that they did not want such conduct. It will be for the Tribunal to assess whether the conduct is in fact unwanted. There is therefore no right for the would-be harasser to “test the water” to establish whether the conduct is unwanted, without risking a harassment claim. A one-off incident can amount to harassment.

Victimisation

An employer victimises an employee if it subjects the employee to detriment because the employee has done, or might do, a protected act. Protected acts are:

• Bringing proceedings under the Act;
• Giving evidence or information in connection with proceedings under the Act, regardless of who brought the proceedings.
• Doing any other thing for the purposes of or in connection with the Act;
• Alleging that a person has contravened the Act.

Objective justification

Where there are allegations of either indirect or direct age discrimination the employer can seek to justify its’ actions. To do this they will have to be able to show that the step taken or treatment of the individual, is a proportionate means of achieving a legitimate aim. The approach generally taken by Tribunals when looking at this issue is to split the justification issue into two questions:

• can the employer establish that it was pursuing a legitimate aim? and;
• can the employer establish that the measures taken to achieve that aim were proportionate?

To do this they must effectively carry out a balancing exercise to evaluate whether the business needs relied on by the employer outweigh the discriminatory impact. The key will be whether the aim could reasonably be achieved by less discriminatory measures.

An example given in the Equality and Human Rights Commission Employment Code is where a haulage company introduces a blanket ban on drivers over 55, because statistical evidence suggests an increase in heart attacks over this age. The aim of public safety would be legitimate. The company would however have to show that a blanket ban was “proportionate” which may be difficult. Medical checks could offer a less discriminatory means of achieving the same aim.

Who is protected?

Age discrimination in the recruitment process

An employer must not harass an individual who has applied for employment. Further, an employer must not discriminate against or victimise a person:

• In the arrangements made for deciding who to offer employment to;
• As to the terms on which an offer is made.
• By not offering employment.

“Arrangements” in this context are construed broadly and are likely to include, for example, the format and content of the application form, the location and timing of the interview, and the job and person specifications.

Discrimination against employees

An employer must not discriminate an employee:

• In the terms of employment;
• In the way it affords or does not afford access to opportunities for promotion, transfer or training, or for receiving any benefit, facility or service.
• By being dismissed.
• By being subject to any other detriment.

In one case, a CEO told a a 55 year old employee to “calm down…don’t let your hormones get out of control” this was seen as evidence that he (the CEO who was in a younger age group) viewed the woman as “a menopausal woman – that is, an older woman”. This led the Tribunal to conclude that at least a part of the reason for her dismissal was age related.

Discrimination exceptions - when they may be lawful

In addition to the provisions relating to objective justification set out above, there are some age-related exceptions:

Service related pay and benefits

Certain benefits based on length of service are excepted. Without this exception long service rewards would be likely to discriminate against younger workers who have not had the opportunity to qualify for them and would therefore need to be objectively justified.

The general exception is for service-related benefits up to five years’ service, beyond that there are restrictions. In these circumstances, to be permissible, it must reasonably appear to the employer that there is a business advantage to applying the requirement in question. For example if the benefit rewards loyalty, encourages motivation or recognises experience.

Redundancy

The age provisions also have an impact on the availability and amount of statutory redundancy payments. Some changes were made to the redundancy payment provisions when the age provisions were introduced in 2006, but the multiplier based on the three age bands remained. This is because the government of the time decided that the scheme best reflects the economic position of the three age bands and the difference in multiplier can therefore be objectively justified.

There are also exceptions for contractual schemes that mirror the statutory scheme, but use increased multipliers, or take the cap of the week’s pay.

• Avoiding age discrimination claims In recruitment avoid the use of language that may imply a particular age group is preferred.
• Place advertisements in a wide range of publications/media which are likely to reach all age groups.
• Avoid requirements relating to length of experience – focus on the skills required.
• Do not ask for date of birth on the application form.
• Use objective selection criteria and key competencies when short-listing.

Our expertise

We advise on all aspects of employment law including on issues relating to age discrimination. We help employers to put in place the policies and procedures to support their employees and business with confidence.

Please contact Ben Smith or your usual Charles Russell Speechlys contact if you would like to get in touch.