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Age discrimination

Age discrimination at work - treating someone unfairly because of age - is against the law apart from in very limited circumstances.

This is the law under the Equality Act 2010 which replaced the Employment Equality (Age) Regulations 2006. Mistakenly, some think there was an Age Discrimination Act in the UK - there never has been one. Under the Equality Act 2010, age is one of the nine special areas of life guarded as what is known as protected characteristics. Others include sex, race, pregnancy and maternity, and disability.

Overview of age discrimination

Age discrimination, also commonly called ageism, is one of the most common forms of unfair treatment at work. The age gap between staff can now be 50 years or more.

Features of the protected characteristic of age under the Equality Act include:

  • protection against unfair treatment because of someone's actual age, or the age they are thought to be, or the age of someone they are associated with
  • protection against harassment because of age, and
  • different treatment because of age being allowed in very limited circumstances.

To understand in detail how age discrimination can happen in the workplace, how to prevent it, and how different treatment because of age can be allowed in certain situations, view or download the:

Key areas where age discrimination may happen

For employers and managers there is more of a risk of age discrimination happening in particular activities in the workplace including:

  • Recruitment - age discrimination could happen at any time during the hiring process - from the very beginning of working out what is required of an applicant, through to drafting the job application form, advertising the job, interviewing for it, using social media, and offering the job.

For example, usually, it is better to set out the type or types of experience needed for a role rather than ask for a certain number of years' experience. Also, a specific qualification should only be insisted upon if essential to the role, and the employer could, if necessary, prove in law the need for that qualification. Applicants should be given the option to demonstrate in another way the knowledge and aptitudes required - for example, through equivalent qualifications, or skills and knowledge from work experience.

  • Training and promotion - employers and managers must not allow any bias, stereotypical thinking or assumptions about age to creep into decisions about who gets trained or promoted.

For example, they must not make assumptions about an employee's needs or ambitions based on their age, length of experience in a job, or length of time with the employer.

Neither must they assume there is more value in training younger staff and no or little value in training older employees. Nor must they discourage an employee with the necessary skills, knowledge and experience from applying for a more challenging job because of their age.

  • Performance management - a manager must approach an employee's appraisal and conduct it without preconceptions or bias concerning age.  They should treat relevant employees consistently when assessing their performance and setting future goals, no matter what the employee's age.

During the appraisal, the manager and the employer must not raise or prompt a discussion about any possibility of the employee retiring. However, they can ask the employee, no matter what their age, about their work plans in the short-, medium- and long-terms, explaining the reason for asking is to help plan the workforce in shaping the business's future needs.

  • Managing under-performance - a manager should not ignore performance matters because the employee is younger or older than other staff.

If there is a performance issue, the manager and the employer must give the employee a fair chance to reach and maintain an acceptable standard, no matter what their age. Only if the employee fails to improve after reasonable steps have been taken to help them, can the employer consider dismissing them for under-performance. And the manager and the employer must ensure the dismissal for under-performance is based on relevant facts.

  • Retirement - in most jobs, there is no longer a set retirement age, meaning almost all employees can decide when they will stop working - but when they can take their work pension will be determined by the pension scheme and Equality Act rules.

However, there can still be uncertainty among some employers about the law and retirement. For example, an employer must not assume an employee is retiring, suggest they retire or try to force them to retire.

Risks of stereotyping people because of age

Stereotyping - making assumptions about job applicants' and employees' capabilities and likely behaviours because of their age - is one of the most likely causes of age discrimination.

Stereotyping can often lead to: poor decision-making when recruiting and promoting or deciding who gets trained; the de-motivation of existing staff who become aware of the stereotyping; and less trust among colleagues. Also, it can lead to discrimination claims.

There are ways to avoid stereotyping. They include:

  • judging people on their job performance or quality of their job application - not assumptions because of their age
  • having different age groups in a team or project - shared goals can bring people together
  • encouraging different age groups to swap ideas, knowledge and skills.

Risks of using ageist language

Derogatory and abusive terms, and comments about an employee or job applicant because of age are likely to be discriminatory. Examples might include a younger employee telling an older colleague they are 'over the hill' or an older employee saying to a young colleague, 'you poor little snowflake'.

In discrimination, how the recipient perceives the words matters more than the intention of the person in saying them.

When different treatment because of age may be allowed

The Equality Act's protected characteristic of age can be complicated in that the Act has some exceptions where different treatment because of age can or may be lawful. They include:

  • where the need for certain types of discrimination because of age can be lawfully proved by the employer
  • the National Minimum Wage and National Living Wage
  • pay and any extra benefits and perks linked to certain periods of time with the employer
  • where being a particular age or within a particular age range, or not a particular age, is a legal requirement of the job. This is likely in only very limited circumstances. In law, this is known as an 'occupational requirement'
  • some circumstances in redundancy. For example, deciding to keep staff who have been with the employer for longer, and making redundant staff with less time with the firm. This is likely to discriminate against younger employees. However, it could be allowed if the employer can prove a lawful business reason in the circumstances - for instance, keeping the most experienced staff who are fully trained and skilled as they are essential to the future of the restructured company.

To find out more and about other exceptions, see the Acas guide pdf icon Age discrimination key points for the workplace [510kb].

Making a claim for age discrimination

If an employee or job applicant feels they have been discriminated against, they can make a claim to an employment tribunal. However, it's best they talk to the employer before doing this to try to sort out the matter informally, without going to a tribunal.

If they do make a claim, the tribunal process includes the Acas service Early Conciliation. To find out more, see the Acas guide, pdf icon Conciliation explained [128kb]. There is currently no requirement to pay a fee to make a claim. Further information is available from Ministry of Justice - Employment Tribunal guidance.

Protected characteristics video

This video introduces and explains the Equality Act's nine protected characteristics, the areas of life protected against discrimination.

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