Age is a protected characteristic under s.5 of the Equality Act 2010. It is therefore prohibited to discriminate against, harass or victimise someone because of their age. ‘Age’ can be defined both specifically or generally – it can either refer to a specific age of, for example, 65 or a more general age group of 60 – 70 years old. Age doesn’t just refer to “old” people, as some people think. It can also refer to perceptions, stereotypes or requirements of younger people.

Age discrimination can be complex and subtle. Listed below are a variety of things to look out for to tell whether you’ve been discriminated against and whether a claim would be successful:

  1. What types of discrimination there are and how to spot them
  2. What kind of treatment can be discriminatory
  3. Who’s protected under the anti-discrimination laws
  4. How to prove you’ve been discriminated against
  5. Defences to age discrimination
  6. What kind of remedy you can expect in an age discrimination claim
  7. How much compensation should I expect?
  8. What’s the process for making a complaint of age discrimination?

Types of discrimination

Discrimination can take many forms. Specified in the Equality Act are:

1. Direct discrimination (s.13): treating a person less favourably than you would treat others because of their age.

Example: An employer decides not to shortlist for interview an applicant because they are perceived to be too old. This would be direct discrimination.

2. Indirect discrimination (s.19): the substantial disadvantaging of a particular age group  as compared with another age group when a seemingly neutral rule is imposed by an employer

Example: An employer states that only workers without children will be employed. This could be indirect discrimination, because it would have a particular impact on older workers who are more likely to have children.

3. Harassment (s.26): subjecting a person to unwanted conduct because of their age which has the purpose or effect of creating a hostile /intimidating working environment for the person

Example: A 17-year-old shop assistant tells her manager that she is upset and humiliated by a customer who regularly uses the shop and each time makes derogatory remarks about her age. If her manager does nothing to try to stop it happening again, he would be liable for age-related harassment.

4. Victimisation (s.27):  subjecting a person to a detriment because of a protected act made in good faith

 

Example: An employer refuses to interview a man applying for promotion, because he previously supported a discrimination case against the employer brought by another employee. This would be victimisation.

Treatment

The main types of treatment that you should look out for includes discriminatory treatment relating to

Recruitment

  • Arrangements for deciding whether to offer you employment
  • On terms on which you are offered employment
  • By not in fact offering you employment

Employment

  • The terms on which you are employed
  • Ways in which you are afforded access to opportunities for promotion, transfer or training or receiving any other benefit, facility or service
  • The way in which you are dismissed
  • Whether you are subjected to any other detriment (defined widely)

Who’s protected under the anti-discrimination laws?

  1. Applicants for employment
  2. Employees
  3. Contract workers
  4. Police officers
  5. Partners in partnerships
  6. Partners in limited liability partnerships
  7. Barristers
  8. Trainee barristers (devils or pupils)

Proving that you’ve been discriminated against

There’s a two-step stage to proving direct and indirect discrimination. Firstly, you must show a ‘prima facie’ case for age discrimination – that in the absence of other explanations the facts suggest on the balance of probabilities that you have been discriminated against because of your age. You can use remarks that have been made, evidence of unreasonable treatment, comparators who have been treated more favourably, and statistics (among others) to hurdle your burden of proof at the first stage. If you do so then your ‘employer’ would then have the burden of refuting that there has been discrimination.

In harassment claims you must show on the balance of probabilities that there has been unwanted conduct because of your age and that this unwanted conduct had the purpose or effect  of humiliating you or degrading you or making your workplace an offensive environment. It’s always a good idea to keep a diary if you think you’ve been harassed or discriminated against.

In victimisation claims you must show that you have made a ‘protected act’ (Such as – but not limited to – supporting or giving evidence in favour of a colleague in a complaint for discrimination against your employer) and that because of your making the protected act you were subjected to any form of detriment. Your protected act must have been made in good faith.

Defences

The Default Retirement Age has now been repealed. It cannot therefore be a justification for your employer to retire you simply because you have reached the age of 65. However, it is still possible for your employer to retire you – to do so it is necessary to comply with a strict procedure laid down in the Employment Rights Act 1996. This involves your employer notifying you by writing of your right to make a request to continue working past your proposed retirement date 6 to 12 months prior to your retirement date. The employer must consider any request made and hold a meeting with you to discuss your request.

Further, your employer is permitted to provide long service benefits and enhanced redundancy payments in limited circumstances. However, those are too complex to go into detail her on.

In direct and indirect discrimination cases there is a defence of ‘occupational requirement’. This means that your employer can state that you are unsuitable for a certain kind of work because of your age. However, your employer’s reason for doing so must be both legitimate and proportionate and only operates in very limited circumstances.

Remedies

Generally, awards in discrimination can take three forms:

  1. Recommendations
  2. Declarations
  3. Compensation

Recommendations include the ordering of a full written apology by an employer or the removal of discriminatory documents, warnings etc. from the worker’s file.

Declarations include a declaration of the rights of the parties in respect of the matter on which the complainant complained.

Compensation involves an award for injury to feelings and/or exemplary and/or aggravated damages. He injury to feelings award is calculated with reference to the Vento brackets. The minimum award is currently £500 and the maximum award is currently £30,000.

Process

You only have 3 months to put in a claim for age discrimination from the date of the last incident of discrimination. To file a complaint you’ll have to submit an ET1 claim form.

 

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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