Age Discrimination in the Workplace

It’s an unfortunate fact that many people are still being treated unfairly in the workplace based on their personal characteristics. Whatever form it takes, this type of discrimination is unlawful and there is legislation in place to provide protection for those who experience it.

The Equality Act 2010 prohibits unfavourable treatment based on 9 protected characteristics:

  • Race
  • Sex
  • Sexual Orientation
  • Disability
  • Religion or Belief
  • Gender Reassignment
  • Marriage or Civil Partnership
  • Pregnancy and Maternity
  • Age

Ageism at Work

If you’re experiencing differential treatment at work because of your age, you may have a case for age discrimination. There’s potential for ageism to crop up in every area of someone’s working life, from the recruitment process right through to dismissal. This discrimination can be categorized as:

  1. Direct Age Discrimination

Treating another less favourably because of their actual or perceived age. For example, an employer decides to dismiss an employee on the basis that they are ‘too old’.

  1. Indirect Age Discrimination

The existence of a workplace practice, procedure, policy or rule which negatively affects people of a particular age or age group. For example, a company policy requiring job applicants to have held a driving licence for 10 years, could discriminate against younger workers.

  1. Harassment

The creation of an intimidating, hostile or offensive environment. For example, colleagues making comments and jokes referencing a fellow employee’s age which the person finds offensive.

  1. Victimisation

The unfair treatment of a person who has supported or made an age discrimination complaint. For example, an employee who makes an allegation is punished by not being given a promotion that they otherwise would have.

When taking a case to an employment tribunal, the burden of proof is on the claimant to provide clear evidence that, because of their age, they have suffered treatment worse that that of someone in comparable circumstances. If these facts are compelling enough for the courts to consider, the burden then shifts to the employer to deny the allegations or show justification for their actions.

Are There Exceptions to Age Discrimination?

There are occasions when age discrimination can be permitted. These occur when the differential treatment is objectively justified and proportionate in achieving a legitimate aim, such as:

  • Business efficiency
  • Health and Safety
  • Rewarding loyalty

It is not enough for a business to simply say that there is a good business reason for the age discrimination. An employer must demonstrate they thought about the discriminatory effects the actions may have on their employees and, despite this, the actions were still necessary.

An illustration of this occurred in a recent Employment Tribunal case which saw a company narrowly defeat a former employee’s claim that his dismissal was a result of age discrimination. Mr Kelly worked for PGA European Tour (the organisation which runs the leading golf tours in Europe) and was 60 years old at the time of his dismissal. The company decided that Mr Kelly’s experience and skill set meant he could not fulfil his role going forward and subsequently tried to negotiate terms for his departure. The CEO of the company asked Mr Kelly to consider retirement, but Mr Kelly was not willing to agree to that request.

The company then dismissed Mr Kelly but avoided putting him through the company’s formal disciplinary process because of his ‘senior position’ within the company and his ‘many years of service’. The CEO contended that he had suggested retirement in order to let Mr Kelly leave with dignity (rather than being dismissed) and it had nothing to do with Mr Kelly’s age. When advertising for someone to fill Mr Kelly’s shoes, the company stipulated that the candidate should be both ‘vibrant’ and ‘energised’. It was under these circumstances that Mr Kelly launched proceedings based on age discrimination.

Although it was seen that references made to an employee’s ‘seniority’ or ‘length of service’ had potential to refer to their age and, as such, result in age discrimination, it was found that other satisfactory reasons were given for Mr Kelly’s dismissal and the decisions were not based upon his age.

Protecting Your Rights in the Workplace

Ageism in the workplace is not a subject to be taken lightly and can severe consequences for both employees and employers. Should you find yourself subject to age discrimination at work, contact our expert employment law team here at Rowberry Morris for help in pursuing your case. Similarly, if you are an employer and want to check whether your company policies fall in line with the legislation, get in touch for prompt, professional legal advice.