Key Points an Employer Needs to Know About Age Discrimination in England

As an employer, it is illegal to discriminate against an employee based on one of their nine protected characteristics. Surprisingly, ageism is one of the most common forms of discrimination in the workplace. If you carry out age discrimination, you could face an employment tribunal for discrimination. This article will explain some key points you, as an employer, need to know about age discrimination in England.

What is Age Discrimination?

Age discrimination is when a person is discriminated against based on their age during employment or in the course of recruitment. Hence, age discrimination could occur where:

• you are training staff;
• you select staff for promotion;
• staff are dismissed; and 
• flexible working requests are considered.  

Ultimately, it is illegal to discriminate based on age in every part of the employment. Discrimination based on age can be where:

• a person is a different age from another person;
• a person is in a different age group than another;
• someone perceives a person to be a particular age; or
• someone associates a person with another in a specific age group.

Does Age Discrimination Have To Be Based on a Particular Age?

It is easy to make the mistake that age discrimination is when a person treats a person less favourably because they are older than others. However, age discrimination can also include where you treat a person less favourably because they are younger than others. 

How Can Age Discrimination Occur?

Like other forms of illegal discrimination in the workplace, age discrimination can occur in the following ways. 

Direct Discrimination

Direct age discrimination is where you treat someone less favourably based on either:

• their age;
• their association with another person based on that person’s age; or
• the age you thought they were.

Indirect Discrimination

Indirect age discrimination is where you discriminate because you apply a workplace policy or procedure that affects a group of people of a certain age less favourably than others. 

You may commit indirect discrimination unintentionally. Nevertheless, you may objectively justify applying such a policy on the basis that it is a proportionate method for achieving a legitimate aim.

Harassment 

Harassment based on someone’s age includes when they receive unwanted conduct due to their age which violates their dignity or creates an environment which is:

• intimidating; 
• hostile; 
• degrading; 
• humiliating; or 
• offensive.

Victimisation

Victimisation based on age is where a person suffers a detriment because they either:

• made an age discrimination complaint or grievance;
• supported a person making an age discrimination complaint;
• gave evidence about an age discrimination complaint; or
• did anything else relating to an instance of age discrimination.

What is Positive Action in Terms of Age?

If a particular age is underrepresented in your workplace, you can take positive action to encourage applicants of that age to become involved in your workplace. For example, you can create job adverts targeting a certain age group. 

Although you can take positive action regarding age, you must nevertheless select the successful candidate based on their merits; not their age. However, where two candidates show equal merits for the job role and one is the age you wish to see represented in the workplace, you may select that candidate over the other.

Key Takeaways

Age discrimination is illegal in the workplace. Every aspect of employment is protected from age discrimination meaning that you must not discriminate when, for example, recruiting or dismissing your staff. You should be aware that there does not need to be a large gap between two peoples’ age for discrimination to occur. You should also note that while you can, on rare occasions, justify age discrimination as a proportionate way to justify meeting a legitimate aim, you can never justify harassment or victimisation based on age.  

If you need help understanding age discrimination in England, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. So call us today on 0808 196 8584 or visit our membership page.

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