In the latest of our series of posts on age discrimination we take a look at indirect age discrimination and the various component parts of such a claim, including an examination of:
  • A definition of “age discrimination” under section 5 of the Equality Act 2010
  • The definition of “indirect age discrimination” under section 19 of the Equality Act 2010
  • Who can claim age discrimination?
  • A brief look at what evidence is required to prove indirect age discrimination
  • What defences are available to employers if they’re accused of indirect age discrimination?
  • Practical tips for both employers and employees relating to indirect 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”; 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 indirect age discrimination

For the purposes of this post we’re going to call the person who’s being discriminated against “A”, and the person who’s doing the discriminating “B”. Under s.19 of the Equality Act 2010 indirect age discrimination occurs if B applies to A a provision criterion or practice (a “PCP”) which is discriminatory.

What are Provisions, Criteria, and Practices?

A “Provision” is a requirement or condition that B applies to all its staff. This includes the refusal to grant a request to return to work full-time if a worker’s been off sick with (for example) arthritis, or that work should be allocated according to the seniority of the employees.

A “Criterion” is defined as a test, principle, rule, or standard by which B works.

A “Practice” is more informal than the other two elements of the PCP.

What is discrimination under s.19 of the Equality Act 2010?

If there is a PCP which is being applied in the particular circumstances, the PCP is discriminatory if:

  • A is of a particular age; and
  • B applies (or would apply) the particular PCP to persons not of the same age or group as A (I.e. all persons working for the business are subject to this PCP); and
  • The PCP puts (or would put) persons of A’s age or age group at a particular disadvantage when compared to other persons; and
  • The PCP puts (or would put) A at that disadvantage

What evidence is normally required to prove indirect age discrimination?

Statistical evidence is normally required to show that a particular age group of workers is put at a disadvantage by the PCP. A would also need to show that they were in particular put at a disadvantage by the PCP. This would normally be based upon A’s witness evidence.

What defences does an employer have to indirect age discrimination?

The employer can attempt to show that the PCP was a proportionate means of achieving a legitimate aim.

Practical tips for employers and employees in indirect age discrimination claims

Employers

  • Ensure that any policies or workplace practices do not adversely affect a particular group of workers or employees because of their age
  • Train your managers to make them aware of what can possibly constitute indirect age discrimination
  • Make sure that grievances and informal complaints relating to indirect age discrimination are dealt with quickly and fairly
  • Ensure that any potentially discriminatory policies or practices are legitimate and proportionate

Employees

  • Again, don’t take discrimination lying down. If you think you’ve been adversely affected by practices or policies of your employer then seek specialist legal advice
  • Always file a formal grievance if you think you’re being discriminated against

 

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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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