The Equality Act 2010 prohibits age discrimination making it unlawful to treat an employee or a job seeker differently based on their age. The rules mean that an employer cannot:
- Dismiss you because of your age;
- Refuse to employ you because of your age;
- Treat you unfairly because of your age;
- Refuse to pay you your redundancy pay;
- Stop you from getting certain benefits because of your age
These rules apply regardless of the size of an employer’s business or how long you have been working there. They even relate to those looking for work and applying for jobs. The law does not, however, apply to members of the Armed Forces or to volunteers.
Age Discrimination – What the rules say
It is unlawful to directly or indirectly discriminate against someone.
Examples of direct discrimination might include
- - Failing to offer an employee a promotion because he is 64 and might retire soon.
- - Rejecting an employee for a promotion because they are younger than the staff they would be managing
- - Defining age in advertising vacancies, “ The ideal candidate will be 30 – 35 years old…”
Examples of indirect discrimination might include
- - Specifying in a job advert that ten year’s experience is required because this would necessarily disadvantage younger candidates in an interview process.
In addition it is also unlawful to harass or victimise an employee.
You should not be harassed or bullied because of your age, your employer must also takes steps to prevent your colleagues from treating you differently. For example making jokes or offensive comments about your age.
Age Discrimination – Victimisation
Victimisation is when an individual is treated less favourably because they have made a complaint or intend to make a complaint about discrimination or harassment
Age Discrimination – Exceptions to the Rules
Unlike other forms of discrimination, age discrimination allows for some specific circumstances in which employees may be treated differently based on age.
- National Minimum wage – there is variation in the level of minimum pay for those under 21 and those under 18;
- Redundancy pay can be linked to age. For example, those over 50 could receive an enhanced package; 1
- Length of Service Related Benefits – it is acceptable to pay those with a greater length of service more or offer them increased holiday entitlement for example, however if this criteria is over 5 years then there would have to be justification for doing so because it is inevitable that older workers would be more likely to benefit.
- Legal requirement. For example, bar staff must be over the age of 18 to serve alcoholic drinks;
- Genuine Occupational Requirement – for example an older actor might be required to play a role in a film or a job may be so physically demanding that a younger person may be required; (see related case below)
- Childcare provisions – these can be limited based on the age of the child.
- Pension – A company can set the age at which employees receive a pension, as long as it is over 55. Additionally, a company can also set ages for admission to schemes and use age criteria in actuarial calculations.
- Life Assurance – If a person takes early retirement because of ill-health it is not unlawful to pay this until the point at which they would normally be expected to retire.
Age Discrimination – Objective Justification
Sometimes a company can discriminate based on age if such discrimination can be objectively justified. This reason must not be related to age alone but must ‘a proportionate means of achieving a legitimate aim’, effectively a strong business reason. 2 For example the health, welfare and safety of employees or encouraging and rewarding service. In practice it is very difficult for employers to prove that discrimination is objectively justified.
- Wolf v Stadt Frankfurt am Main 20103
- In this case the European Court Of Justice held that rejecting a candidate for a position in the Frankfurt fire service on the grounds of age was discriminatory but that it was objectively justified on the grounds that the job required a level of fitness unlikely to be achievable by those over 30.