Selected cases on age discrimination in the workplace
Age discrimination occurs when someone is unfairly disadvantaged for reasons relating to their age which cannot be objectively justified. It has been illegal in the UK since 2006, with the law now incorporated into the Equality Act 2010. People of all ages can be affected, including younger and older workers, and the growing number of older people in employment makes this group a key focus.
This factsheet offers an overview of the different types of discrimination with examples of how they apply to age. It refers to retirement and suggests good employment practices to ensure everyone has fair access and opportunity to progress in work, regardless of their age. Lastly, the factsheet offers an action plan for employers.
It makes sense from both a moral and a business perspective to recruit and fully utilise the talents of an age diverse workforce. It’s also important for organisations to proactively think through the strategic implications of an ageing workforce.
We are committed to the removal of age discrimination in employment and our research suggests age diverse teams can greatly benefit both individuals and the organisation. Being a genuinely inclusive employer will benefit an organisation’s reputation and brand image, positively impacting their ability to recruit great people and be attractive to customers.
At the CIPD, we are proud of our work to demonstrate diversity and inclusion in the workplace. We have a broad Diversity and Inclusion Group, which includes representatives from HR and a subgroup focussing on age issues.
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What is age discrimination?
Age discrimination arises when someone is unfairly disadvantaged for reasons, which cannot be objectively justified, relating to their age.
- adversely affect anybody and their employment opportunities, regardless of how old they are
- result in failure to consider skills-based abilities, potential and experience in the workplace
- result in significant legal costs, compensation, and settlements paid to avoid defending expensive discrimination claims.
It’s unwise to base employment decisions on age because it’s a poor predictor of performance and it’s misleading to equate physical and mental ability with age. The efficient and effective use of people’s skills requires that employment decisions should be based on competencies, qualifications, skills, potential and objective job-related criteria obtained through careful analysis of job requirements and job performance. Employment decisions based on age are only legally permitted when they are objectively justified (when they are a proportionate means of achieving a legitimate aim).
A recent government report has found that discrimination, bias and outdated practices exist across businesses, despite having been explicitly illegal since 2006. Evidence from this research suggests that older workers are regularly discriminated against in the jobs market and disproportionately likely to be selected for redundancy. The Centre for Ageing Better finds that the issue is pressing: their survey of over 500 employers shows that only 1 in 5 are currently discussing the strategic implications of an ageing workforce.
The number of older people in the workplace is expected to increase significantly over the next 20 years. Our reports Managing an age-diverse workforce: what employers need to know and Managing an age-diverse workforce: employer and employee views explore some of the key issues. Creating longer, more fulfilling working lives is a comparative study covering five European countries which investigates how employers can best manage an increasingly older workforce in the context of their health and well-being and care responsibilities.
The legal position
In Great Britain, discrimination on the grounds of age, originally introduced by regulations in 2006, is now contained in the Equality Act 2010.
- The provisions protect people of all ages in employment regarding recruitment, promotion, reward and recognition, redundancy and vocational training.
- The provisions apply to all employers, providers of vocational training, trade unions, professional associations, employer organisations and trustees and managers of occupational pension schemes.
- Occupational pensions are covered by the provisions, as are employer contributions to personal pensions although, generally, the way in which pension schemes work is not affected.
- The provisions do not affect state pensions.
The Equality and Human Rights Commission has published a range of guidance on all aspects of the Equality Act, including a Code of practice on employment. Whilst not legally binding documents, the codes give important guidance on good practice and failure to follow them may be taken into account by tribunals or courts. CIPD members can find out more in our Age discrimination Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
Types of discrimination
Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which include age.
This applies to all protected characteristics. It's treating someone less favourably than another person because of a protected characteristic that they have. For example, it's promoting or demoting someone because they're of a specific age, regardless of their ability or experience. Direct age discrimination can potentially be objectively justified in the same way as indirect age discrimination.
Indirect discrimination occurs when:
- a provision, criterion or practice is applied to all, and:
- it puts a group with a protected characteristic at a disadvantage when compared with another group
- an individual is put at a disadvantage
- the employer cannot show it to be a proportionate means of achieving a legitimate aim
For example, if a criterion is put in place that an employee must have at least 10 years’ service before being eligible to apply for promotion, this means that employees under the age of 26 cannot be promoted. This would be unlawful unless the employer could show that there was a good reason for the 10 years’ service being required.
This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone unfairly because they're part of a group of young employees, even though they themselves are older.
This is treating someone less favourably because it's perceived that they have a protected characteristic, whether they do or not. For example, refusing to appoint someone because it's wrongly thought that they are a particular age.
Victimisation occurs when someone is treated less favourably because they've made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it's thought that they've made a complaint. A comparator isn't required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.
Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.
There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment.
Find out more in our factsheet on workplace bullying and harassment.
Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See the guidance from Citizen’s Advice.
Other important legal points
- Length of service requirements for employment benefits practices of five years or less are legal.
- Length of service requirements for employment benefits practices of periods longer than five years may also be justifiable if the employer can show that they've awarded the benefit to reward loyalty, to encourage motivation or to recognise the experience of a worker.
- The National Minimum Wage and National Living Wage are still related to age, as is the basic award used when calculating unfair dismissal awards.
It's still theoretically possible for an organisation to have a specific retirement age, but this has to be objectively justified which is extremely difficult for most employers to establish.
Employees may agree to retire at a certain age, but employers can now only enforce dismissal of an older worker by following a fair dismissal procedure and relying on one of the fair reasons for dismissal.
CIPD members can find more information on the removal of the default retirement age in our Age discrimination Q&As.
Good employment practices
As part of coherent diversity, inclusion and employee engagement strategies, employers should undertake thorough reviews or equality analyses of policies and working practices to remove unfair discrimination and bias. HR have a key role in creating open workplace cultures. Our podcast on thinking strategically about age diversity discusses how organisations can support different generations of workers.
Although there’s no legal requirement to have a written diversity policy, it’s a good idea to produce one to demonstrate the organisation takes its legal and moral obligations towards being a diverse employer seriously. It can also encourage employees to treat others equally.
Recruitment and selection
Interviewers, and those concerned with selection, should be trained to make sure they understand what causes age discrimination and how to avoid it so they make recruitment decisions based on objective criteria relevant to the job and personal merit.
Age, age-related criteria or age ranges shouldn't be used in advertisements. Rarely, this may be permissible to encourage applications from age groups which don't usually apply. While such forms of encouragement through positive action are lawful, positive discrimination isn't and employers need to make sure they treat everyone fairly regardless of their age, especially when trying to redress imbalances in the average age of their workforces.
While age should not be taken into account in employment decisions, age details are needed by employers for a variety of reasons including, for example, workforce monitoring. However, monitoring information can be asked for in a ‘tear-off’ section of an application form to make sure it isn't used inappropriately in the selection process.
A person’s age shouldn't be used to make judgements about their abilities or fitness. Where such a judgement is required, an occupational health or medical practitioner should be consulted. Age shouldn't be used as a factor in physical test requirements.
Pay and terms of employment should be based on personal contributions and standards of job performance rather than on age.
Training and development
Employees of all ages should be eligible for training and development programmes. The automatic exclusion of age groups, such as those nearing retirement, is not only potentially unfairly discriminatory, but also leads to a failure to make the best use of talent and can stop people from making better contributions and adding greater value to business performance.
Good talent management practice requires the removal of prejudice and stereotyping in connection with appraisal and performance management.
Evidence shows the value of flexible working both as a retention tool and to help people to make an effective return to work.
When making redundancies, the organisation’s future needs for knowledge, skills and competencies should be taken into account to safeguard its economic success. Organisations need to take care in applying their selection criteria. For example, the sole use of ‘last in-first out’ (LIFO) as a method of selecting for redundancy is likely to be unlawful, as it may be indirectly age discriminatory.
An action plan
- Scrutinise the organisation's people management and development policies, practices and procedures – even those that aren't labelled 'HR' – because age discrimination can occur subtly or overtly anywhere in the employment cycle from recruitment to redundancy or retirement.
- Implement a policy on age which tackles age discrimination as part of the organisation's approach to diversity and inclusion.
- Use only objective job criteria essential for satisfactory performance and ensure that these can be objectively justified.
- Communicate the policy on tackling age discrimination to all managers and employees and offer appropriate training to make sure it's implemented as intended.
- Conduct an age audit to assess employees’ attitudes towards age and age-related issues, address risks or issues that could lead to future discrimination claims, and create a firm foundation for your policies and practices.
- Remove the use of age, age guidelines and age-related criteria.
- Challenge the use of age and age-related criteria in every aspect of employment decision-making.
- Educate and train all staff about the implications of age discrimination.
- Use dates of birth for monitoring purposes and administration only. To gain the confidence and trust of job applicants and employees, give written assurances about the way monitoring information will be used and follow this up to ensure that this assurance isn't compromised.
- Monitor the age profile of your organisation at regular intervals to spot unfair discrimination against particular age groups.
- Making sure that all age groups have access to development and promotion opportunities and are motivated to continue to improve the contributions they make.
- Try to avoid using a retirement age, but if one is deemed necessary take very careful steps to ensure it meets the legal standard of justification.
Useful contacts and further reading
Books and reports
ACAS (2014) Age and the workplace: a guide for employers and employees. London: Acas.
ALTMANN, R. (2015) A new vision for older workers: retain, retrain, recruit. London: Department for Work and Pensions
BROWNELL, P and KELLY, J.J. (2013) Ageism and mistreatment of older workers: current reality, future solutions. Dordrecht: Springer.
FLYNN, M. and HOUSTON, K. (2015) Managing healthy ageing workforces a small and medium sized enterprise business imperative. Glasgow: Healthy Working Lives.
RUBENSTEIN, M. (2018) Discrimination: a guide to the relevant case law. 31st ed. London: Michael Rubenstein Publishing.
UK COMMISSION FOR EMPLOYMENT AND SKILLS (2015) Catch 16-24: youth employment challenge. London: UK Commission for Employment and Skills.
CALNAN, M. (2017) Ageism the most common form of discrimination, say employees. PM Daily. 30 March.
Employing young workers. (2013) Employers' Law. March. pp14-15.
FLEISCHMANN, M., KOSTER, F. and SCHIPPERS, J. (2015) Nothing ventured, nothing gained! How and under which conditions employers provide employability-enhancing practices to their older workers. International Journal of Human Resource Management. Vol 26, No 22, December. pp2908-2925..
LEE, R. and STEPHENS, J. (2015) How can employers prepare for an ageing workforce? Employers’ Law. February. pp.14-15.
TIRBUTT, E. (2013) The generation game. Human Resources. April. pp60-63.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated Lisa Ayling, solicitor and employment law specialist, and Claire McCartney.
Claire McCartney: Diversity and Inclusion Adviser (Maternity cover)
Claire is Diversity & Inclusion Policy Adviser at the CIPD having previously been Adviser for Resourcing and Talent Planning at the Institute for several years. For the last two years she has been running her own research and consultancy organisation.
Claire specialises in the areas of diversity & inclusion, flexible working, resourcing and talent management. She has also conducted research into meaning and trust at work, age diversity, workplace carers and enterprise and has worked on a number of international projects. She is the author of several reports and articles and regularly presents at seminars and conferences.
Prior to her roles at the CIPD, Claire was Principal Researcher at Roffey Park where she conducted research projects into a variety of topics including Roffey Park’s annual Management Agenda survey, work-life balance, flexible working, employee volunteering, talent management, and diversity. Claire has also worked with a range of clients on tailored research needs.
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