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Age is one of the nine protected characteristics in employment law. This means that it is illegal to discriminate in employment based on age. As an employer, you have an obligation not to discriminate based on age. You must also take reasonable steps to ensure that no one faces discrimination based on age. It does not matter how long someone has been in your employment, nor does it matter what your employee’s age is. You must be clear on what constitutes age discrimination in your workplace and what your duties are in this respect. If you fail to carry out your obligations, your business may have to defend itself at an employment tribunal. This article will explain what you, as an employer, need to know about age discrimination in England.
What is Age Discrimination?
Age discrimination in the workplace is an unlawful form of discrimination. It is where one person treats another less favourably or puts them at a disadvantage because of the second person’s age. That said, there are certain exceptions where there is a reasonable business basis for treating one party differently from another based on age. Such conduct is unlawful without a legitimate business reason, and you may hear it referred to as ageism.
Age discrimination, like other forms of illegal discrimination, can be carried out in different ways as follows:
- direct discrimination;
- indirect discrimination;
- harassment; and
- victimisation.
Direct discrimination can occur in varying forms, so it is not simply about treating another less favourably because of what their actual age is but can also be where you treat someone less favourably because of:
- what age you perceive them to be, which is direct discrimination by perception; or
- the age of the person they associate with, which is direct discrimination by association.
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How Might Age Discrimination Occur in Employment?
Age discrimination can arise throughout the lifecycle of employment, beginning before employment commences. You can also unlawfully discriminate based on age after an employee’s service has ended. Below is an overview of how age discrimination might come about.
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During recruitment |
Age discrimination can occur across all aspects and stages of recruitment.
For example, when advertising your job position, you must be careful not to use phrases such as asking for ‘mature’ applicants, as this seems as though you are not open to accepting young candidates.
Likewise, if you are recruiting apprentices or trainees, you should not include an upper age limit. |
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During training and promotion |
Avoid discriminating based on age when training and providing promotion opportunities in your business. You should not, for example, stop someone from taking a training course because of their age. Nor should you make assumptions about which employees may elect for voluntary training opportunities based on age.
When offering promotion opportunities, you should not, for example, assume that since your worker is young, they cannot assume extra responsibility associated with the more senior role. |
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Pay and conditions |
Your compensation policies must not discriminate against employees based on age. For example, you must not discriminate in terms of who you offer a bonus to or who you allocate more shifts based on age.
However, the law does permit you to pay younger employees in certain circumstances. Therefore, you should ensure you comply with the National Minimum Wage laws. |
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After employment ends |
You owe certain obligations to employees after their service ends. For instance, if you give an employment reference, you should ensure it does not prejudice them based on their age. |
When Can an Employer Treat Someone Differently Due to Age?
While it is unlawful to discriminate against someone based on age, there are certain times when, as an employer, you can lawfully treat your staff differently. Essentially, you must be able to justify any discrimination on the basis that there is a reasonable business case for the conduct. The reasons must be proportionate and balanced against the employee’s right to work in a workplace free from discrimination. For instance, you can refuse to hire a bartender under 18 because otherwise employing them may make it difficult to abide by other laws.
In all cases, you should consult an employment lawyer if you believe a policy may result in discrimination based on age, even if you believe it is lawful.
Key Takeaways
As an employer, you must not discriminate against your employees based on their age. Discrimination can take the form of direct or indirect discrimination. This obligation begins at the recruitment stage, through the length of their employment, and beyond in certain circumstances. For example, when preparing a job advert, you should not state a minimum age for your job adverts. You should also ensure that you do not discriminate regarding training and promotion opportunities. There are, however, some instances where discrimination based on age is allowed, such as where it is an occupational requirement.
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. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
Age discrimination is when a person is treated less favourably by another or put at a disadvantage based on their age. Additionally, there must not be any commercial basis for the discrimination.
As an employer, you must not unlawfully discriminate against any of your employees based on their age. You must also take steps to prevent unlawful discrimination in the workplace.
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