Discrimination or unfair treatment on the basis of age is prohibited by the Equality Act (2010). Our specialist Employment Law team answer your questions about age discrimination in the workplace.
By doing this you could be discriminating indirectly against younger applicants.
To ensure compliance with age discrimination law, the job advert should state an applicant needs to meet a certain level of competence or knowledge. Adverts should avoid ageist language such as ‘youthful’ or ‘mature’.
You can use phrases like ‘recent graduate’ or ‘experienced’ when these are actual requirements of the job.
You must give clear reasons as to why one employee has been promoted over another. This must be because of their skills and performance. You must not make assumptions about an employee’s attributes based on their age.
You should never discourage any employee with the necessary skills, knowledge & experience, young or old, from seeking to progress in their job role.
You should treat all employees fairly and consistently when assessing performance. You should not ignore under-performance because of age. You must give the employee the opportunity to improve their performance using a Performance Improvement Plan. This might include providing additional training or a mentor.
You must implement a fair selection criteria – redundancy decisions should be based on the performance and skills of the employees you are considering for redundancy, not stereotyped ideas about their age.
You must carry out a fair redundancy process.
This could potentially be viewed as age discrimination if they are the only one who was not invited and everyone else is much younger.
Employees should be encouraged to be inclusive. Excluding a fellow employee can be detrimental to them and their working relationships.
You should regularly ask employees how they are doing and ensure any rifts between employees is dealt with.
Benefits awarded based on length of service up to 5 years are fine, for example additional holiday days.
If you award additional benefits to individuals based on their having longer than 5 years’ service, you must be able to show that you reasonably believe this fulfils a business need. You should be able to show evidence that you have considered this business need.
Up until April 2011, employers could force workers to retire at 65, however this has now been scrapped, meaning that there is no legal retirement age and employers cannot force their workers to retire.
However, there are some exceptions to the above rule, employers can legally make a worker retire, as long as they have a good reason. Examples could be:
If you force an employee to retire, you must follow a fair procedure.
You have the right to dismiss employees if they are underperforming, however this decision must be based on performance and not age.
Be aware that if their underperformance is due to a disability caused by age such as arthritis then reasonable adjustments must be considered.
Once an employee has submitted in writing their intention to retire, including their leave date, you are under no obligation to allow the employee to continue working beyond the stated leave date. You should discuss with your employee to decide what is best for your business.
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