In this next post in our series on age discrimination in the workplace, we are taking a look at direct age discrimination in the context of employment law. This will involve  an examination of:

  • A definition of “age discrimination” under  s.5 Equality Act 2010
  • The definition of direct discrimination under s.13 Equality Act 2010
  • Who can claim direct age discrimination?
  • A brief look at what evidence is required to prove direct age discrimination
  • A brief look at the defences available to employers accused of direct age discrimination
  • A worked example of direct age discrimination
  • Practical tips for both employers and employees relating to age discrimination

What is age discrimination?

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”)
  • 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 direct discrimination

Direct discrimination is defined under s.13 Equality Act 2010 as the less favourable treatment of an applicant or employee because of their age (their “protected characteristic”). This less favourable treatment can take many forms – a refusal to shortlist a candidate, a person’s dismissal from their job, or less favourable contract terms (among others). We will explore various types of discriminatory treatment in future posts.

Who can claim direct age discrimination?

Both workers and employees (different categories of employment which are too complex to go into detail here about) can claim direct age discrimination. 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 discrimination?

The Claimant (the person who has been discriminated against) must prove on the balance of probabilities that they were treated less favourably than other comparable workers or employees at the business. The “comparators” can be actual (has a worker employee in a similar job but of a different age or age group to the Claimant been treated differently because of their age?) or hypothetical (would a hypothetical worker or employee have been treated differently to the Claimant because of their age?). The important thing is to show that the discriminatory treatment that you have is received is because of your age and not for any other reason. If, for example, the employer can show that you weren’t offered a promotion because of a personality clash (unrelated to age) between you and your manager then this would probably not amount to age discrimination. Further, if your employer can show that it treats all employees equally badly then the conduct that you received would not be discriminatory because everyone would be treated the same. However, employer’s don’t usually succeed with the “bastard defence” in the Employment Tribunal.

The defences to age discrimination

There are a number of defences that an employer can use to defend a claim of direct age discrimination in the context of employment law:

  • An employer can discriminate on the basis of age (but only on the basis of age) if it can show that there was a genuine occupational requirement for the job i.e. that they needed a person of a particular age to do the job
  • An employer can also discriminate on the basis of age in certain circumstances relating to retirement
  • As above, the employer can seek to assert that the reason for the discriminatory conduct was not age or any other protected characteristic but something more ‘mundane’ i.e. a personality clash
  • As above (again), the employer can seek to assert that they treat all employee equally badly

A brief worked example of direct age discrimination

Annette has worked for Lawyers Ltd for the last thirty years. She has “worked her way up the ranks” and still retains a burning ambition to get promoted further. However, she is now aged fifty and thinks that she has been discriminated against on the basis of her age as she was not even shortlisted for the latest promotion vacancy. She filed a grievance with Human Resources regarding this and was told that she was “too qualified” for the job and that they wanted someone with preferably less than five years’ experience.

Annette would probably have a good claim for direct age discrimination on the above facts. She should consult a specialist employment lawyer to obtain specialist employment law advising relating to age discrimination law.

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 discrimination are dealt with quickly and fairly
  • Train your managers to make them aware of the signs of age discrimination and how to deal with it

Employees

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

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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