Age Discrimination in England and Wales

Is age discrimination unlawful?

Yes. The Equality Act 2010 came into force on 01 October 2010, consolidating all existing discrimination legislation into one piece of legislation.

What is unlawful discrimination?

The law prohibits: (i) direct discrimination; (ii) indirect discrimination; (iii) harassment; and (iv) victimisation. It is also unlawful to issue instructions to discriminate on the ground of age.

Direct discrimination occurs when a person is treated less favourably because of their age and their employer cannot show that this is objectively justified.

Indirect discrimination is when a provision, criterion or practice applies (or would apply) to everyone but causes disadvantage to a certain group (such as younger or older people), unless there are good reasons for it.

Harassment is where a person engages in unwanted conduct which has the purpose or effect of violating another person (B)’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for B.

Victimisation is where a person is subject to a detriment because they have brought age discrimination proceedings or helped another person to bring such proceedings (for example by giving evidence on that other person’s behalf).

When is discrimination prohibited?

Discrimination is prohibited in relation to: (i) recruitment (including the advertisement of vacancies; (ii) terms of employment; (iii) opportunities for promotion, transfers, training or receiving any other benefits; and (iv) dismissal.

Can discrimination be justified?

Both direct and indirect discrimination can be objectively justified and lawful if it is a proportionate (or appropriate and necessary) means of achieving a legitimate aim. It is also lawful to use an age requirement if this is an occupational requirement or, in limited circumstances, where it amounts to lawful positive action. Harassment, however, cannot be justified.

Who must not discriminate?

The law applies to all employers irrespective of the business carried out by the employer. It applies to both the private and public sector.

Who is protected?

The majority of the law applies to job applicants, employees, agency workers, independent contractors and ex-employees. The law protects all workers irrespective of their age and, therefore, protects both older and younger workers.

Special rules on age and benefits

Length of service criteria

Any length of service requirement of five years or less is lawful, however, if the requirement is greater than five years’ service, the employer must be able to show that it “reasonably appears” to him that the way in which the length of service criterion operates fulfils a business need.

Others

Specific exemptions also apply to enhanced redundancy payments and minimum wages. It is not unlawful to stop providing insured benefits or a related financial service to employees once they reach the age of 65.

Retirement ages and procedures

Compulsory retirement ages are unlawful unless objectively justified.

Protection against dismissal

It is unlawful to dismiss an employee because of their age, or to victimise a person by dismissing them after they have brought age discrimination proceedings.

Discriminatory agreements

Any discriminatory terms or conditions in an agreement are null and void. Any contractual terms which purport to exclude an employee’s right not to be discriminated against are unlawful unless contained in a compromise agreement.

Enforcement and penalties

An individual can complain to a Tribunal if they have been subject to discrimination. If a Tribunal upholds a complaint it can make: (i) an order declaring the rights of the parties; (ii) an order requiring the employer to pay compensation; or (iii) a recommendation that the employer acts to obviate or reduce the effect on the complainant of any act of discrimination or harassment within a specified period.

Compensation for age discrimination is unlimited, whereas, compensation for unfair dismissal, is capped (the current cap is available here).

Key issues

Retirement ages and retirement procedures should be reviewed to ensure that they comply with the new requirements of the legislation. Employers should also ensure that they are not inadvertently subject to a discrimination claim if their employees make inappropriate comments in the workplace.

Recommended steps

Employers should ensure that their workforce is appropriately trained in order to eliminate age discrimination. An employer’s policies, including contractual retirement ages, should be reviewed to remove any discriminatory provisions.

Further information on Age discrimination in England and Wales is available from our International Employment Issues microsite.