It is a protected characteristic under the Equality Act 2010. The Equality Act 2010 protects this characteristic. Recent research highlighted the issue when they found that employers considered 57 years old to be “too old” and that over half of UK’s over 50s believe that age discrimination will make it difficult to find a job. It has caused a lot of debate because it shows that employers are not taking age discrimination seriously enough. How can you be sure you are not breaking the laws?
Under the Equality Act employees of any age are protected from discrimination in all areas of employment, including recruitment, terms and conditions of employment, promotions, rewards and recognition, and training. Age discrimination claims can be brought by employees or job applicants regardless of their employment length. It’s illegal from the moment the job is advertised until the final day of employment, and even beyond. It also isn’t restricted to a single age group. It is important to ensure that you are not discriminating between the young and old.
The Equality Act defines four types of discrimination:
- Direct discrimination can happen when an employer refuses a promotion to an employee due to their age. Assessment of skills should be done based on objective criteria, not age.
- Indirect discrimination. It is less obvious. Indirect age discrimination could be a result of a job advertisement that asks only for applicants with 10 years’ experience, rather than their qualifications and skills. This would exclude young people, who might have the qualifications and skills needed for the role.
- Harassment is defined as ‘unwanted conduct that is related to an employee’s age. This can include bullying and threats. It could also be inappropriate remarks or nicknames. If, for example, an employee makes offensive remarks about the employee’s age then this is harassment.
- Victimisation is when an employee suffers as a consequence of a complaint about discrimination or harassment. If an employee was denied a promotion they otherwise would have received because they complained of workplace discrimination.
Exception
This law has an exception. The law allows employers to make decisions based on the age of an employee if it can be shown that the decision is objectively “justified and proportionate”. In the case of direct discrimination, they must show that the action taken is a “proportionate way to achieve a legitimate goal.” In the case of indirect discrimination, they must prove their ‘provisions, criteria or practices’ that affect the employee or group of employees in that age range or group are a proportionate way to achieve a
In order to prove that the employer has a legitimate goal, he must demonstrate both:
There are good reasons for doing so (costs alone won’t be enough) and
2. The actions taken must be proportionate, necessary and appropriate. The employer will have a harder time justifying its actions if the discriminatory effect is greater.
It may be legal for an employer, in very limited circumstances, to insist that applicants are of a certain age. This is called a ‘occupational requirements’ in law. For example, if you want to serve alcohol, you must be at least 18 years old.
Employers can do what they can to avoid age discrimination
Employers should have in place a policy that defines age discrimination, provides examples and outlines reporting procedures to avoid age-based discrimination. It should be made clear in the policy that the employer won’t tolerate unfair treatment at work. If discrimination is found, the policy must be implemented. The mere implementation of policies is not enough.
Training on equality, diversity, and inclusion, including age discrimination, should be given to supervisors and employees. Ageist terms, such as those used in social media to denigrate people, should not be allowed in the workplace. Training should help employees to understand the benefits and repercussions associated with age diversity in the workplace.
Advertisements for Jobs
When writing a job advertisement, employers should take care to avoid accidentally discriminating during the hiring process. You can achieve this by:
- Use at least two channels, and place your ads in places where people are likely to see them.
- Avoid using language that suggests applicants must be a certain age. Do not, for example, ask for “mature” applicants or “new graduates.”
- No need to ask applicants for their date of birth or age on the application form.
- Do not use age related questions during interview.
- Avoid stereotyping or using ageist language.
- Choose and appoint only the most qualified candidate for the position, regardless of age.
- It is also important that employees are aware of the fact that it could be discriminatory to check a candidate’s social media profile, including age.
Employers must not deny an employee training or development because of their age. Employees must not be denied training or development based on their age.
Employers should also make sure that they inform all employees of all job openings and promotions and not deny a promotion to an employee because of age.
Employers should not base their decision to reduce the work force or layoffs on an employee’s age. Employers should not dismiss employees because they believe an employee will retire in the near future. Also, employers should not use salary as the reason for dismissing an employee.
Employers should be open to a multigenerational workforce, as the law clearly states. Recognising the unique strengths of all employees regardless of age is key to a successful organisation.
