The Equality Act 2020 makes age discrimination in the workplace unlawful. Age is one of the protected characteristics, which means you are protected from direct discrimination and indirect discrimination because of your age. The law is designed to protect you from age discrimination in the workplace.
Age Discrimination In The Workplace
The first consideration is how is age defined in the Equality Act 2010.
Age is defined by reference to a person’s age group. For example, when referring to age and describing those that share this protected characteristic, it means they are in the same age group. An age group can refer to people of the same age or a range of ages.
Age groups can be wide (such as people under 40) or narrow (people in their mid-20s). The age groups may also be relative (so people older or younger than a certain person).
Age Discrimination In The Workplace – What Is Protected
The main forms of age discrimination that you are protected from are:
- Direct Discrimination – where you are treated less favourably than someone else because of your age.
- Indirect Discrimination – When a certain provision, criterion or practice at work, put people a specific group of people that share a protected characteristic at a disadvantage.
- Harassment in Work – When you are harassed at work, because of your age.
- Victimisation at Work – Where you are subjected to a detriment because you did a protected act (for example, alleging age discrimination).
Who is Protected
As seen, age discrimination in the workplace has various forms and the law seeks to protect a wide cross-section of people. The law protects both job applicants and those “in employment,” defined as those under a contract of employment, a contract of apprenticeship or a contract personally to do work. This covers employees, employee shareholders, workers and potentially a category of those who are self-employed.
There are increased rates of women aged 50 and above in the workforce meaning more working women than ever before will experience their menopause transition whilst working. There may be discrimination issues for women treated differently because they are menopausal.
Age Discrimination – Objective Justification
Both direct and indirect age discrimination in the workplace can potentially be objectively justified under the Equality Act 2010. This is essentially a defence to the discrimination.
Age discrimination will be justified if it is “a proportionate means of achieving a legitimate aim.”
Example – A Company operating on a hazardous site may have a policy of not employing anyone under the age of 18. The aim of the policy is to protect young people from health and safety risks on their site, which is supported by accident statistics that younger workers are more at risk. This would most likely be a “legitimate aim” and imposing an age threshold of 18 would be a proportionate means of achieving that aim (a much higher age threshold would be less likely to meet the test).
Exceptions
The Equality Act 2010 (Schedule 9) sets out some exceptions to age discrimination in the workplace. In addition to occupation requirements and positive action (exceptions that apply to other protected characteristics) there are other exceptions that apply exclusively to age discrimination. Some examples of these are:
- Benefits based on length of service.
- Redundancy pay.
- Minimum wage.
- Employers are able to remove insurance benefits for employees reaching the age of 65.
- Provision of childcare facilities for employees with children of a particular age group.
Age Discrimination – Compensation
If you have been subjected to age discrimination you may be entitled to compensation.
Discrimination compensation is a complicated issue, which is why it is important to understand what you can and cannot claim.
Age Discrimination Claims – Tips
If you think there has been age discrimination in the workplace, here are some pointers:
- Keep a record of each alleged act of discrimination. Don’t just label it as so, say what happened, setting out the date, what happened (or did not happen), who was involved, and what evidence you have.
- In terms of evidence, think about what you have and pull it together, in date order, always being careful not to breach a work policy in the process (such as forwarding work emails to personal emails.
- Take advice. Age discrimination is complicated and often misunderstood. Taking professional advice at an early stage is a good idea, which will help you understand what your options are.
- Act quickly. Time limits in employment law claims are very short.