Age Discrimination
Have you been directly or indirectly been discriminated against or harassed or victimised in the workplace on the grounds of your age?
One of the most recent and also most important changes in employment law is the prohibition of age discrimination in the workplace.
Age is a protected characteristic under the Equality Act 2010. It not only applies to older workers but to younger workers too. It also offers protection to those of a certain age range such as those in their 20’s or in their 70’s.
The law is designed to protect employees and workers of any age during all aspects of employment. These include:
Age discrimination in the employment law context covers the following types of discrimination:
Direct discrimination covers less favourable treatment based upon a person’s age, perceived age or the age of a person’s associate – such that the person suffers discrimination because they associate with someone of a certain age.
Direct discrimination can be intentional or unintentional.
Direct discrimination also requires a comparison with colleagues who do not share your age characteristic but are similar in other respects, so that you can demonstrate a particular disadvantage to yourself as a result of being of different age.
An employer can objectively justify direct discrimination and use this as a potential defence to a claim.
Indirect discrimination is where practice, provision or criterion (i.e. a rule relating to your employment) is implemented by your employer and applies equally to all persons but puts you at a disadvantage because of your age or age group compared to other employees.
This law also protects people who are discouraged from applying for a job because they know that a provision or practice of the workplace would put them at a disadvantage.
While indirect discrimination can be intentional or unintentional this is irrelevant.
As with direct discrimination, you are required to compare your situation with other colleagues who do not share your age or age group and it can be objectively justified by your employer.
Age harassment is the unwanted conduct related to age which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading or humiliating or offensive environment for a person.
Common examples of age harassment might include offensive comments about the natural signs of aging, age-related nicknames or being excluded from workplace activities because of age.
Being put under pressure to retire by your employer may also amount to age related harassment.
Age related harassment can include discrimination based on your perceived age or the age of someone you associate with just as with direct discrimination. It is irrelevant if the behaviour is not directed at you and that you do not share the protected characteristic if you find the behaviour offensive.
Following on from this the harassment doesn’t have to be directed at an individual, it can be the general culture of the workplace or even include unwanted conduct from clients, customers or suppliers of the company.
The act has been extended to include third parties which means that if your employer is made aware of the situation with the third party and fails to take positive steps to prevent the harassment from occurring on at least three occasions, then they could be liable to you.
Age victimisation is where you are treated less favourably as a result of you trying to make, having made or helping someone else to make or assumed to have made , a complaint or grievance of age discrimination under the Act.
Unlike the other types of discrimination there is no longer a need to compare your treatment to an employee who has not done one of the above.
If you are looking for a No Win Fee Employment Law Solicitor to represent you, we need to assess the merits of your potential claim which we are normally happy to do free of charge.
How can age discrimination be justified?
It is on occasion necessary to directly or indirectly discriminate justifiably on the basis of age and the law recognises this.
This means that age discrimination is unique amongst the protected characteristics.
If by discriminating against you your employer can show that it is a ‘proportionate means of achieving a legitimate aim’ then they maybe be able to successfully argue that the discrimination is justified.
This justification is however difficult for the employer and they must prove they have no reasonable alternative.
An example of a reasonable justification is where there is a genuine occupational requirement – such as in the selection of cast members for a film production as the role requires actors of a certain age.
What other rights does the Act give?
An employee’s request to work beyond 65 must be considered using the detailed procedure laid down in the act and the employer must show there is “objective justification” to retire the employee.
The fact that you have reached a certain age is not in itself a good enough reason to retire you.
Employers have to ensure that any redundancy policies do not directly or indirectly discriminate against older employees. For example – by selecting only part-time workers for redundancy when many of these may be older workers.
Employers are also unable to discriminate in respect of the benefits they provide to employees over the age of 65. The only exceptions to this will be where an age requirement can be objectively justified.
Can an employer simply make me redundant at 65 to avoid any liability under the Act?
If the principal reason for you being dismissed is redundancy and not down to your age then the redundancy will be legal.
You will still be entitled to claim redundancy pay in the usual way.
What steps should I take if I think I have been discriminated against because of my age?
If you are an employee and still in employment and you haven’t been able to resolve the issue informally with your line manager, then it is best that you firstly lodge an internal grievance.
This may be appropriate, for example, where you have been declined promotion or have been harassed due to your age. Your employer will be obliged to arrange a meeting without unreasonable delay to discuss your grievance claim.
You may, however, still be able to bring a claim against your employer in the Employment Tribunal whist you are still employed.
If you think you have been discriminated against and you have already been dismissed, you can lodge claims for unfair dismissal and age discrimination at the Employment Tribunal.
Any claim issued should be within 3 months of the date of dismissal or alleged discriminatory behaviour. It is now also mandatory to go through ACAS’s early conciliation scheme before submitting a claim to the tribunal.
What kind of compensation could I be due?
If you are successful in your claim, any damages are uncapped and represent any monetary losses suffered in terms of wages, pension rights, perks etc.
A tribunal may also award compensation for injury to feelings.
Three bands of compensation guidelines have been set out by the Court of Appeal for injury to feelings dependant on the serious of the case.
These are commonly known as the “Vento” guidelines.
Band | Lower Value | Upper Upper Value |
---|---|---|
Lower Band – Less Serious Cases | £660 | £6,600 |
Middle Band | £6,600 | £19,800 |
Top Band – Most Serious Cases | £19,800 | £33,000 (can exceed this in exceptional cases) |
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