Ageism: Could you be sued for age discrimination?

As the multigenerational workforce becomes commonplace, employers must ensure they do not discriminate on the grounds of age from attraction and recruitment to redundancies. Lydia Wawiye, Senior Associate, Employment Law Solicitor, Parfitt Cresswell explains more.

Ageism, also called age discrimination, is when an employee is treated less favourably at work because of his/her age. It is a protected characteristic under the Equality Act 2010.  Research recently highlighted the issues when it found that employers consider 57 to be ‘too old’ and that a third of over 50s in the UK believe they will struggle to find work due to age discrimination. This has prompted a debate, as it suggests that too many employers had not taken this discrimination as seriously as the law requires. How can you ensure you’re not breaking the law?

Under the Equality Act, employees of all ages are protected in all aspects of their employment including recruitment, employment terms and conditions, promotion, reward and recognition, training and dismissals. There is no minimum length of employment for an employee or job applicant to bring a claim for age discrimination.  It is unlawful from when the job is advertised through to the last day of employment and beyond, including job references.  It is also not restricted to one age group. You need ensure you’re not discriminating against the young or old.

There are four main types of discrimination under the Equality Act:

• Direct discrimination – This can occur if an employer refuses to promote an employee because they are too old or young. The assessment of people’s skills should be based on competency, qualifications and experience using objective criteria and not on their age. 
• Indirect discrimination. This is usually less obvious. For example, a job advert which specifically asks for people with 10 years of experience rather than focusing on their skills and qualifications, could amount to indirect age discrimination because it excludes young people who may also have the skills and qualifications needed for the position.
• Harassment – This is defined as an ‘unwanted conduct’ that is related to the employee’s age. It can include bullying, threats, nicknames, and/or inappropriate comments. For example, if another employee makes offensive comments about an employee’s age this would amount to harassment. 
• Victimisation – This is where an employee suffers a detriment as a result of being involved in a discrimination or harassment complaint. For example, if an employee is passed over for promotion that they would otherwise have been given because they complained about workplace discrimination. 

Exception 

There is an exception to this law. An employer can make a decision based on an employee’s age if they can show that it is objectively ‘justified and proportionate’ In relation to direct discrimination the employer must prove that their action concerning the employee is a ‘proportionate means of achieving a legitimate aim.’  In relation to indirect discrimination, the employer must prove its ‘provision, criterion or practice’ affecting the employee and group of employees of that age or age group is ‘a proportionate means of achieving a legitimate aim’. 

To prove a legitimate aim, the employer must show both that:

1.  There is a good business reason (cost alone will not be considered sufficient) and 

2. That the actions taken are proportionate, appropriate and necessary. The more discriminatory the effect, the more difficult it will be for the employer to justify its actions. 

In very limited circumstances it may also be lawful for an employer to require applicants to be of a particular age or age group. In law this is known as an ‘occupational requirement.’ An example is the requirement to be 18 years or over to serve alcohol.

Other exceptions, where different treatment because of age may be lawful, include redundancy and redundancy pay, National Minimum Wage and National Living Wage and pay and extra job benefits linked to length of time with employer. 

What can employers to do avoid age discrimination

To avoid age discrimination employers should ensure that they have a policy in place which defines age discrimination with examples, as well as reporting procedures. The policy should make it clear that the employer will not tolerate unfair treatment in the workplace. The policy must be enforced if discrimination occurs. It is not simply enough to put policies in place. 

Supervisors and employees should be provided with equality, diversity and inclusion training, specifically on age discrimination. It should be made clear, for example, that ageist terms that are commonly used on social media in a derogatory way, have no place in the workplace. The training should also help employees understand the benefits of age diversity and the repercussions of discrimination in the workplace, which in turn will create a strong and inclusive workplace. 

Job advertisements

Employers should be careful when writing an advertisement for a job vacancy to ensure they are not accidentally discriminating in the hiring process. This can be achieved by:

• Using at least two channels and placing adverts where everyone might look.
• Avoid using wording which suggests that applicants should be of a particular age group. For example, do not ask for ‘mature’ applicants or ‘new grads.” 
• Do not require applicants to list their age or date of birth on application forms.
• Do not use age related questions during interview.
• Avoid stereotyping and using ageist language. 
• Select and appoint the best applicant that is suitable for the job and not because of their age.
• Employees should also be aware that checking an applicant’s background on social media, including their age, could also be discriminatory.

When it comes to training, employers must ensure that all employees, regardless of their age, are made aware of the opportunities for training and personal development. Employers must not deny an employee training or development because of their age. 

Employers must also ensure that all job vacancies and promotion opportunities are mentioned to all relevant employees and must not deny an employee a promotion because of their age. 

If employers decide to make layoffs, or a reduction in work force, the decision should not be based on age. For example, just because an employer thinks an employee might retire soon, is not a reason to let them go. Employers should also not target salary as a reason for an employee’s dismissal. 

The law is clear, employers should embrace a workforce. This means recognising that all employees, regardless of their age, have unique strengths that they bring to the table and can contribute towards the organisation’s success.