Age discrimination: a guide for employers

What is age discrimination?

Ageism is defined as any prejudice or discrimination on the grounds of age. In other words, age discrimination in employment is when someone’s age is used as the basis for employment decisions, for example not recruiting someone because they are perceived to be too young or old.

Age discrimination is rarely about an active dislike (unlike racism for example) but is based on stereotyped prejudices and myths. For example, younger workers being less committed and older workers more loyal would be construed as ageist assumptions.

What is the relevant age discrimination legislation?

The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006 and require that all employment practices are based on skills

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and competencies, rather than age. Workers can sue their employers if they feel they have been harassed or victimised because of their age.

Ageism impacts on every aspect of the employment cycle from recruitment through to retirement and protects all ages. So old and young workers, indeed workers of any age, can bring a claim based on age discrimination.

Employers are not allowed to recruit, train, promote or retire people on the basis of age, unless it can be objectively justified. Employers can cite ‘objective justification’ as grounds for escaping the legislative provisions.

Age discrimination law is complex. Ultimately the courts will determine what is or isn’t acceptable practice or behaviour. Until ageism case law develops however, much remains uncertain.

What rights do ageism laws give workers?

Unfair dismissal protection no longer ceases at the age of 65. There’s a right for employees to request to work beyond the national retirement age and for employers to consider it. If employers fail to follow the correct procedure in dealing with requests they could face age discrimination claims from employees.

The direct use of age limits in job adverts has been outlawed along with ageist language such as ‘young graduates’.
Age Positive provide more on what the regulations cover.

What might an employee claim?

Most age discrimination complaints are likely to be about recruitment and promotion. But there will be a range of ageism claims as the law affects all employees at different stages of their career as this Personnel Today article The five ages of discrimination shows.

How can an employee bring an age discrimination claim?

The complainant simply has to prove facts from which an employment tribunal could infer that the employer has committed an act of age discrimination. Unless the employer can provide evidence that it did not commit the act, the tribunal will find in favour of the employee.

To defend a claim, the onus is on the employer to show that it did as much as possible to prevent their employee from being discriminated against.

Employers need to demonstrate that fair and transparent processes have been applied and that age is not part of the decision-making process. An age discrimination questionnaire from BERR (formerly the DTI) sets out exactly what an employee must do to lodge a claim and how employers must respond.

How much could an employee claim?

As with all discrimination claims, compensation for a successful age discrimination claim is unlimited so employers could face huge fines. How employers handle the situation and what they have done in advance to ensure that age discrimination is not tolerated, for example training, would be considered.

How many age discrimination claims are there likely to be?

Dubbed the most significant new employment laws for a generation, some experts believe that the number of age discrimination claims will rapidly overtake other discrimination claims. This Telegraph report citing Personnel Today estimates 20,000 age-related challenges a year. In the Republic of Ireland age discrimination has been unlawful since 1998 and accounts for a fifth of all tribunal claims. In the US age discrimination laws there have resulted in a 40% increase in tribunals.

What steps can employers take to comply with ageism laws?

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Eradicate age-based practices by ensuring that all policies affected by the laws, such as recruitment, redundancy and retirement comply with the laws, eg by removing date of birth on application forms and avoiding length of service based rewards.

Employers need to ensure they keep good records of internal procedures and decision-making processes – for example when shortlisting potential recruits, promotions, and selecting workers for redundancy. In many organisations there is a crucial gap between policy and practice. The biggest challenge employers face is overcoming and challenging long-held views and assumptions that many of people still hold about workers of different ages.

What are the business benefits of an age-diverse workforce?

Age lobby groups continue to push the business case for age diversity and the message that age discrimination at work is unacceptable and bad for business.

Demographic change means there are more older workers who are healthy, willing and able to work and younger workers are more highly skilled and educated than before.

There’s growing evidence to show the business benefits of employing an age-diverse workforce.

Has equality legislation gone too far?

Some organisations believe there will be resentment from staff because they can’t have ‘banter’ with colleagues by sending an ‘over the hill’ birthday card for example because it could been taken as ageist behaviour.

The BBC has a wealth of video and audio clips on ageism, dating from before the laws were introduced in the Autumn to teh current day.

Try completing our quiz to explore your own inner ageism