• A definition of “age discrimination” under section 5 of the Equality Act 2010
  • The definition of “age-related harassment” under section 26 of the Equality Act 2010
  • Who can claim for age-related harassment?
  • A brief look at what evidence is required to prove age-related harassment
  • What defences are available to employers if they’re accused of age-related harassment?
  • Practical tips for both employers and employees relating to age-related harassment

A definition of “age discrimination” under section 5 of the Equality Act 2010

Under the Equality Act 2010 a reference to  a person’s age involves a reference to:

  • That person’s particular age group (i.e. “she is 21” or “he is 60”)
  • The shared age group of multiple persons (i.e. “people in their forties”; or
  • A group of persons defined by reference to a particular age of to a range of ages

It can therefore be age discrimination under employment law if person is discriminated against because they are over 50 or because they are aged 21. This gives potential Claimants a great deal of flexibility if they are looking to make an age discrimination claim.

The definition of “age-related harassment” under section 26 of the Equality Act 2010

Age-related harassment occurs if a person is subjected to unwanted conduct because of their particular age or membership of an age group which has the purpose or effect of creating a humiliating, degrading, offensive, or intimidating atmosphere at work, or violates their dignity.

For age-related harassment to occur the conduct clearly has to be unwanted. If a person invites another to make a joke about their age or engages in “banter” related to other peoples’ ages then comments relating to their own age would probably not be deemed to be unwanted (although this would depend on the facts of the particular case). However, the worker who is a victim of the age-related harassment doesn’t necessarily need to complain of the conduct for it to be harassment (although submitting a grievance is almost always recommended).

“Conduct” can cover a wide variety of situations, including:

  • Remarks not directed at the worker
  • Remarks directed at other people
  • Actions (such as putting up a semi-nude poster of a young woman or man)

Two important points to note are that the conduct does not have to relate to the worker’s own protected characteristic, and that the conduct does not have to be because of the protected characteristic but can be only related to it. In the former case, if employee A were to make remarks on employee B’s age and employee C found this offensive, employee C could pursue a claim for age-related harassment. In the latter case, if an employee was to stop having a relationship with his or her boss, and his or her boss started making remarks on his or her new relationship, then this would be unwanted conduct related to his or her sex but not because of his or her sex.

The conduct must also have the purpose or effect of violating the worker’s dignity. This entails both a subjective and an objective test. First, the worker’s reaction to the unwanted conduct must be looked at – did the worker actually feel hurt by the words or actions? Secondly, was such a reaction reasonable in the circumstances?

 

Who can claim for age-related harassment?

 

Both workers and employees (different categories of employment which are too complex to go into detail here about) can claim for age-related harassment. There is no “qualifying period” of employment to be able to claim age-related harassment (as, for example, with statutory maternity pay). Further, the ability to claim direct age discrimination isn’t only limited to current workers or employees at a business, it’s also extended to prospective employees (people apply for a job) and dismissed employees.

 

What evidence is required to prove age-related harassment?

 

The worker must be able to demonstrate on the balance of probabilities that:

 

  • The conduct they are complaining of occurred
  • That the conduct was unwanted
  • That the conduct was because of or related to a protected characteristic
  • That they were subjectively hurt by the conduct
  • That it was reasonable to react in this manner to the conduct

 

Witness statements in age-related harassment cases are crucial. The worker should try and get other witnesses to corroborate what has occurred.

What defences are available to employers if they’re accused of age-related harassment?

The only defence that an employer can employ to a claim of age-related harassment is that it took preventative action to stop the harassment, whether it knew of that particular instance of harassment or not. This could be by, for example, sacking the offending worker in the particular instance or putting in place an equality policy. However, it is often difficult for employers to argue that they have taken sufficient preventative steps.

A brief worked example of age-related harassment

Belinda has worked for Lawyers Ltd for 3 weeks. She is 21 years old and is just starting her career as a trainee solicitor. One of her co-workers, Christian, keeps making lewd remarks about her age, commenting on her figure and saying that she looks “fit for a 21 year old”. The conduct is unwanted and makes her uncomfortable at work. She is even thinking of trying to transfer departments. As well as other claims, Belinda may have a claim for age-related harassment.

Practical tips for employers and employees

Employers

  • Make sure that you have a written equality policy in place and ensure that staff are aware of this
  • Send staff for equality training to prevent claims of vicarious liability
  • Make sure that grievances and informal complaints relating to age-related harassment are dealt with quickly and fairly
  • Train your managers to make them aware of the signs of age-related harassment and how to deal with it

Employees

  • Don’t take discrimination lying down – if you think you’ve been discriminated against because of your age then take legal advice
  • Always file a formal grievance if you think you’re being discriminated against
  • Make it clear to the person who is harassing you on the basis of your age that you’re unhappy with their conduct (if possible)

About

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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