We kick off our series of factsheets with age discrimination. We intend to cover topics which individuals may find of particular interest or, which are universally relevant but tricky to navigate. Our aim is to give basic facts about the legal concepts involved and to debunk the technicalities, using plain English.
What is age discrimination?
The Equality Act 2010 makes it unlawful for employers and others to discriminate against, harass or victimise a person because they have a relevant “protected characteristic”.
Age is one of the nine protected characteristics set out in the Act. The others are: disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Age discrimination law does not just protect older people; a younger person can also bring a claim of age discrimination. For discrimination purposes, “age” may refer to a particular age or a particular age group spanning a range of ages. Age may be your actual age or the age someone assumes you are.
Discrimination can be “direct” or “indirect”. Direct discrimination is less favourable treatment than someone else because of age. Indirect discrimination involves a “provision, criterion or practice” (such as a workplace policy) which applies to everyone but which puts people in a particular age group at a disadvantage when compared to people not in that age group.
There is a defence to both direct and indirect age discrimination if the employer can show a good business reason why it needed to discriminate and that there was no less extreme way (in terms of the impact on the individual) of achieving it. This is known as a “proportionate means of achieving a legitimate aim”.
Have I been discriminated against because of my age?
You may be discriminated against both before, during or after employment. For example, the terms of a job advert like “10 years’ experience”, “enthusiastic young person”, or “recent graduate” may suggest that younger candidates are preferred. Older people may be less likely to have gone to university so a requirement to have a degree could discriminate against them.
Benefits provided under the employment contract may be less favourable for those of a certain age or you may not be able to receive certain benefits unless you are a certain age. Redundancy schemes can be particularly prone to discriminatory terms.
Being dismissed because you have reached a certain age, perhaps because you have moved into a higher band for the national minimum wage would be discrimination. Other than in very exceptional circumstances, employers can no longer insist that an employee retires because they have reached a certain age.
Older or younger people may suffer banter and teasing in the workplace which is age harassment.
What should I do if I think I have been discriminated against because of my age?
The first thing you should do is raise the matter informally with your manager. If this is not something you feel comfortable with or it does not produce the result you want then you should use your employer’s formal grievance procedure (which should be available in your staff handbook or intranet) to bring a complaint about the treatment which you believe is age discrimination.
How can I bring a claim?
Claims under the Equality Act 2010 can be bought in the Employment Tribunal. Claims can be made online or claim forms can be downloaded from: https://www.gov.uk/employment-tribunals/make-a-claim
No application fee is payable to bring a claim but you will have to pay for your own legal advice and this is unlikely to be recoverable in full (or at all). If you have home or other insurance you should check with your insurer as your policy may cover you for legal fees.
Do I need to be employed before I bring a claim of age discrimination?
No. Job applicants who have never been employed are protected against age discrimination and, if you are an employee, you do not have to resign before you bring a claim. If you are an ex-employee you can still bring a claim, as long as you do this within the general time limit of three months from the end of your employment.
How much compensation might I be entitled to?
There is, theoretically, no limit on the amount of compensation you can recover if you are successful in bringing a claim of age discrimination. Both economic loss (for example wages or pension contributions) and non-economic loss for injury to feelings are recoverable.
Tribunals follow guidelines known as the “Vento guidelines” when assessing how much compensation to award for injury to feelings. For claims after 6 April 2018 these provide bands of awards:
- A lower band of £900 to £8,600 (for less serious cases).
- A middle band of £8,600 to £25,700 (for cases that do not merit an award in the upper band).
- An upper band of £25,700 to £42,900 (for the most severe cases).
- In exceptional circumstances for very extreme cases, awards can exceed £42,900.
Big Corp. Limited is restructuring its organisation due to the economic downturn and has put employees “at risk” of redundancy. The company has a generous pension scheme; anyone who is made compulsorily redundant over the age of 55 gets an unreduced pension which requires the employer to make a significant financial contribution to the pension scheme to fund the additional pension. The company decides that it will not make anyone aged over 55 redundant, in order to save money . George Smith is 56 and would like to be made redundant and retire early but the company’s policy means he is not made redundant. George believes this policy unfairly discriminates against employees in his age group (the over 55s) and brings a claim for age discrimination in the employment tribunal. As part of his evidence that the company tolerates age discrimination he discloses that his nickname in the office is “Gramps” and he produces a birthday card signed by colleagues which has a picture of an old man with a walking stick on the front which says “live a little on your birthday (while you still can)”! George is successful in his claim as Big Corp. can’t justify its decision not to make George redundant on the grounds of costs alone. George is awarded compensation for economic loss and injury to feelings in the middle Vento band.
How can we help you?
If you would like to know more about age discrimination and your employment rights, talk to our employment law specialists today. We’ll help you figure out the best way forward for you.
The content of this fact sheet is for information only and does not constitute legal advice. You should take specific professional advice in respect of your specific circumstances before acting on any of the information given.