Age discrimination, or ageism, is a common form of unfair treatment in the workplace that involves less favourable treatment of individuals based on their age.
It can adversely affect both older staff members, who may be overlooked for employment opportunities because their employer believes they are too old, and younger employees, who may be passed over for positions or receive a lower salary solely based on their age.
The repercussions of age discrimination for affected workers are profound, leading to reduced opportunities, heightened job insecurity, and a decline in overall well-being. For organisations, this may result in decreased productivity, low employee morale and significant legal ramifications, as age-based discrimination is prohibited under the Equality Act 2010.
This guide explains how age discrimination manifests in the workplace and outlines the legal protections available to employees. It also considers the preventative measures employers can implement to avoid discriminatory practices, as well as the steps employees should take if they suspect they have been subjected to age discrimination.
What is Ageism in the Workplace?
Ageism in the workplace involves discrimination or unjust treatment of individuals due to their age and can impact both older and younger employees. This may include the denial of opportunities and provision of lower salaries, as well as preconceived notions regarding a person’s capabilities based on their age. Such attitudes are frequently driven by stereotypes or assumptions about individuals that are based solely on their age, rather than their actual skills, competencies, and experience.
Age-Based Stereotypes
Age-related stereotypes often depict older employees as rigid in their approach to new technologies and organisational shifts, suggesting they lack the ability to learn new skills. They may also be passed over for promotions or development opportunities based on the assumption that they are nearing retirement, making them appear an unreliable long-term investment. On the other hand, younger workers may face their own challenges in advancing due to being perceived as less dependable, less motivated, and reluctant to put in hard work.
These forms of bias, whether explicit or implicit, and even if unintentional, can create a harmful workplace atmosphere that makes employees feel unappreciated and discriminated against.
Identifying Age Discrimination in the Workplace
Below are specific instances of age discrimination that may occur in the workplace:
- Recruitment practices that involve discriminatory job advertisements, such as those seeking ‘youthful energy’ or refusing to consider older candidates due to the belief that they won’t integrate well into the company culture.
- Targeting older workers for redundancies or organisational restructuring.
- Offering lower salaries to older employees compared to younger colleagues with similar qualifications and experience.
- Excluding older employees from social activities or informal networks can lead to feelings of isolation and exclusion.
- Displaying dismissive attitudes towards the ideas and contributions of younger employees, based on the mistaken belief that they lack sufficient experience or maturity.
- Making age-related jokes or comments, or subjecting an employee to an environment rife with age-related insults or harassment. For instance, in a successful age discrimination case, the claimant was referred to as an ‘old fossil’ who ‘did not know how to manage millennials.’
- Imposing stricter performance management standards on older employees to justify negative reviews or disciplinary measures.
- Pressurising employees to retire at a certain age, even if they are capable and willing to continue working. A notable recent case involved a senior partner who was compelled to retire at 63 and subsequently won an age discrimination case against prestigious law firm Walker Morris LLP.
- Assigning fewer challenging tasks to older employees or excluding them from important projects.
These practices not only exemplify discrimination but also negatively impact morale and productivity in the organisation.
Recognising these signs of age discrimination is essential for employers aiming to foster a fair and equitable workplace. Tackling age discrimination also helps to comply with legal obligations, this is particularly important considering the recent rise in compensation awarded in age discrimination cases, which surged by 624% in one year to an average of £103,000 in 2023-24.
Furthermore, addressing age discrimination improves the overall well-being of the organisation by ensuring that all employees, regardless of their age, have equal opportunities to thrive and make meaningful contributions.
Legal Protections Against Age Discrimination
Age is recognised as one of the nine protected characteristics under the Equality Act 2010, which prohibits discrimination based on age or perceived age throughout the employment process, with some exceptions.
The Act applies to a broad spectrum of individuals, including employees (both fixed-term and indefinite-term), contractors, trainees, apprentices and self-employed persons. There is no minimum period of employment required for an employee to be protected against age discrimination; in fact, the Act protects job applicants even before the employment relationship commences.
Legally, an employer is obliged to refrain from directly or indirectly discriminating against an employee or job applicant, whether by treating them less favourably or by putting them at a disadvantage. Additionally, they must not harass or victimise individuals for reasons related to their age.
The Distinction Between Direct and Indirect Age Discrimination
Direct and indirect discrimination both involve unfair treatment based on age, but the distinction lies in the manner in which the discrimination occurs.
Direct Discrimination
Direct age discrimination occurs when an individual is treated differently or unfavourably due to their age, such as being denied employment despite having the requisite qualifications, solely because of their age. This form of discrimination includes unfavourable treatment based on perceived age, irrespective of the accuracy of that perception.
Indirect Discrimination
Indirect age discrimination, however, encompasses policies or rules that appear neutral and applicable to everyone but unintentionally disadvantage specific age groups.
This type of discrimination is less obvious and often unintentional. It can stem from various workplace policies or practices, such as limiting a training course to recent graduates, which may disadvantage older employees, or implementing ‘last in, first out’ as a redundancy selection criterion, which could disproportionately affect younger employees who have been with the company for a shorter time.
Both types of age discrimination may be justified if the employer can demonstrate a valid reason for the differential treatment, such as a genuine business necessity or a health and safety requirement, and if there are no less discriminatory alternatives that can achieve the same objective. For example, an employer might justifiably decline to hire a 17-year-old for a night shift because the legal minimum age for such work is eighteen.
Harassment by Reason of Age
Harassment on the grounds of age is ‘any unwanted conduct in the workplace that has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating, or offensive environment’. Such treatment is also prohibited under the Equality Act 2010.
This may encompass bullying, derogatory remarks, nicknames, unwelcome jokes, inappropriate questions or comments, or exclusion from professional or social activities due to their age.
The emphasis is on the victim’s perception and emotional response to the unwanted behaviour, rather than on the intent behind it.
Preventing Age Discrimination
Employers must implement measures to combat age discrimination in the workplace by ensuring that policies and practices do not disadvantage workers based on their age, providing equal opportunities and offering training to identify and mitigate age discrimination.
This can be achieved through:
- Regularly reviewing existing policies and practices to identify any bias or discriminatory actions, including those that may unintentionally discriminate against a particular age group. For example, a policy that requires frequent travel could disadvantage older workers with health concerns.
- Fostering a respectful workplace culture that disregards age in treatment or opportunities can be achieved through clear communication regarding anti-discrimination policies and the promotion of respect for all employees.
- Educating employees and managers on recognising and addressing age discrimination.
- Encouraging an age-diverse environment that values contributions from different age groups. When practical, this could involve promoting mentoring opportunities, allowing flexible work arrangements to accommodate varying needs and preferences, and investing in training and development for all employees to acquire new skills and advance their careers.
- Taking all complaints of age discrimination seriously by conducting thorough investigations and implementing the necessary actions.
Protection against Unfair Dismissal and Redundancy Based on Age
According to the Equality Act 2010, an employer cannot dismiss an employee solely or primarily on the grounds of their age. There are specific exceptions where age-based treatment may be considered lawful, particularly when an individual’s age or capability does not meet the essential criteria of the job, provided the employer can offer objective justification for the termination.
An employee, even if they are over 65, can claim unfair dismissal if they believe their dismissal was unjust and influenced, at least in part, by their age.
Furthermore, employers must follow a fair and objective procedure during the redundancy process, ensuring that the selection criteria are not influenced by age or any other protected characteristic. It is crucial for employers to ensure that the criteria for redundancy do not disproportionately affect employees of a specific age group. If they do disadvantage younger or older employees compared to their peers in other age groups, the criteria must be objectively justified. Neglecting this responsibility may result in successful claims for age discrimination and/or unfair dismissal by employees affected by the redundancy criteria.
While an employer may seek volunteers for redundancy, they must refrain from restricting voluntary redundancy offers to age groups eligible for early retirement packages, as this could amount to unlawful age discrimination.
Reporting Age Discrimination
When an employee suspects that they have experienced age discrimination in the workplace, the first step is to document the dates, times, specific remarks, and any witnesses to the discriminatory actions.
The employee should then follow the employer’s internal grievance procedures by submitting a written complaint that details the discrimination and suggests possible resolutions.
If this approach does not yield a successful outcome, the employee may seek further guidance from the Acas helpline or the Equality Advisory Service, particularly if they are considering legal action. Trade unions may also provide assistance and advice. It is crucial to remember that there are strict deadlines for filing a claim, and typically, the Acas Early Conciliation process must be initiated within three months minus one day from the occurrence of the incident in question.
Benefits of an Age-Inclusive Workforce
Adopting an age-diverse workforce is not merely a legal obligation; it also presents numerous advantages for businesses. Employees from various age groups contribute different skill sets, which enhance problem-solving and overall performance.
The diversity of age groups introduces unique viewpoints that encourage innovation and creativity, facilitate knowledge sharing and improve the company’s reputation.
Ultimately, a workplace that values all age demographics can also help to mitigate skill and labour shortages, promote a more stable workforce, and foster a more resilient and adaptable work environment.
Require Further Assistance?
The intricacies of discrimination law can be surprisingly complex, and even the most well-intentioned business owners may inadvertently violate the law if their workplace practices are not regularly assessed.
Our knowledgeable employment law team possesses distinctive expertise in discrimination law and is equipped to assist in drafting or reviewing employment contracts and policies to ensure compliance.
Additionally, we routinely provide guidance to individuals regarding age discrimination claims, as well as to employers defending against such claims. Contact us on 0330 162 4393 or email us to schedule your free, no-obligation initial consultation.
