Age discrimination in the workplace is prohibited by the Equality Act (2010). Our expert Employment Law solicitors answer some frequently asked questions about ageism in the workplace.
Direct age discrimination occurs when you are treated less favourably because of your age. For example, you carry out the role of Sales Assistant at a small shop with one other younger employee. A promotion for the role of Store Manager comes up. Your employer thinks you are not interested as you are 60 and they assume you might want to retire soon. As such, your employer only invites the younger employee to apply and you miss the opportunity.
Indirect age discrimination occurs where an employer has a policy or practice (or similar) that applies to all employees in the same way, but puts you and other people of the same or similar age at a substantial disadvantage. For example, without proper justification, a job advert requires at least 5 years’ experience in a similar industry. This disadvantages younger employees as they are less likely to have this length of experience.
Yes, your employer can defend direct and indirect age discrimination claims if they can show that the less favourable treatment is/was a proportionate way of achieving a legitimate aim. This is known as the justification defence. Each case will depend on the facts.
For example, although the compulsory retirement age was abolished several years ago, it is still possible for some employers to justify having a compulsory retirement age and therefore defend direct age discrimination. A professional services firm may be able to justify a compulsory retirement age for partners in order to allow career progression for your younger employees and succession planning.
This occurs where your employer subjects you to unwanted conduct related to age which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This can be in the form of age related jokes or comments, such as telling an older employee “you remind me of my grandma”, or more subtle, “you are stuck in your ways”.
Alternatively, it can take the form of bullying someone because of their age, such as picking on a younger employee for minor mistakes and showing them a lack of respect.
For direct discrimination, ideally you need to point to an actual employee of a different age that has not suffered the treatment complained of. If not, you can point to a hypothetical comparator, to show that you would not have treated less favourably if you had been younger/older.
Age discrimination may not be obvious. You may not have any evidence of ageist comments, but you have a suspicion that age is a factor. For example, you are the oldest member in your team. A major project is given to a younger colleague with lack of explanation. You have noticed that your younger colleagues often have lunch or dinner together. This may help to evidence that age was part of the conscious or sub-conscious decision making, so that a project is given to the younger colleague because the manager thinks they will work better with someone of their own age.
You can submit a Subject Access Request to your employer to try and find evidence of any ageist comments or assumptions being made about you that could help to support a claim.
You should raise a formal grievance with your employer to explain why you think you have been discriminated against and provide them with evidence of this.
If you wish to make a claim the time limit for doing so is 3 months (minus one day) from the alleged instance of discrimination. The first step is to enter your case for Acas Early Conciliation. Any grievance or appeal process does not pause this time limit.
Discrimination claims can be complicated. You should take specialist legal advice to consider whether you have reasonable prospects of making a claim.