Member Article

Our final article in this series discussing different protected characteristics and the discrimination claims they give rise to, focuses on age, how employers can fall foul of the law and the steps they need to take to avoid age discrimination claims.

 

What is age discrimination?

The Equality Act 2010 prohibits both direct and indirect age discrimination, as well as age related harassment and victimisation. It protects both job applicants and those in employment, including workers and individuals who are required to perform the work personally themselves. Direct discrimination claims can also arise based on the perception that an employee is of a certain age or because they associate with someone of a particular age, for example because the employee has young children.

The Act does not treat certain ages differently. All ages are deemed a protected characteristic and can cover a particular age or a range of ages. So, for example, a protected age group could comprise of a group such as the over-fifties or a particular age such as 21-year-olds.

Age is unique among the protected characteristics in that an employer can potentially justify discriminating (both directly and indirectly) against an individual due to their age. To do so, an employer would need to demonstrate that their action was a ‘proportionate means of achieving a legitimate aim’. It is important to remember that a ‘legitimate aim’ means a genuine or real reason. Whilst saving money can contribute to a legitimate aim it will not alone meet this threshold. ‘Proportionate’ means the employer’s decision must be appropriate and necessary. It must be the least discriminatory option available to the employer.

There are some exemptions under the Act, for instance in relation to the provision of benefits that reward long service or stopping insurance benefits to employees when they reach the greater of age 65 or state pension age.

Common issues faced by employers

Recruitment

Unless absolutely necessary or for diversity or monitoring purposes, employers should avoid asking applicants to confirm their date of birth. Whilst doing so is not in itself a discriminatory act, an unsuccessful applicant could point to this as the reason they were not selected if the successful candidate is in a different age group. If candidates are required to provide such information, employers should avoid sharing this with the recruiting manager so that it cannot factor into whether an application is successful or not.

Care should also be taking when preparing and placing job adverts. Employers should avoid stipulating age limits and using language that might imply they are seeking applicants of a specific age group (e.g., ‘recent graduates’, ‘those with 10 years’ experience’ or ‘youthful enthusiasm’).

Additionally, positions should be advertised in a variety of places to capture the widest possible group of candidates. With some media platforms and websites targeting specific age groups, using a variety of outlets increases the likelihood that the opportunity is seen by applicants of all ages.

Employers should avoid requiring specific qualifications, particularly those completed at university, and should instead permit equivalent qualifications or experience. With more people now attending university compared with 30 years ago, older people are less likely to have degrees, potentially leaving them excluded on age grounds if a less prescriptive approach is not taken.

Dismissal

Employers should avoid making assumptions about an individual’s capability based on their age, for example presuming that an older worker cannot learn new skills, that younger workers do not have the experience to handle certain situations or automatically exploring early retirement when an individual reaches 55.

Rushing a redundancy process to avoid an individual reaching a certain age and becoming entitled to enhanced payments, such as under a pension scheme, or not offering voluntary redundancy to those over 50, can also give rise to a claim of age discrimination.

Harassment

Age is often the focus of workplace banter or off-hand comments and as such can result in claims for harassment where the conduct has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. For example, shunning a co-worker because it is thought they are too old to fit in, telling an employee they are out of touch or making jokes about teaching an old dog new tricks can all amount to harassment.

Menopause

With more women aged 50 and above in work, more women than ever will experience menopause transition during their working lives. Employers need to be aware of the potential for age discrimination claims relating to the menopause and ensure that they put measures in place to support women during this time so that they are not treated less favourably or placed at a disadvantage.

Positive Action

Positive action is the term used to describe the steps employers can take to help individuals with protected characteristics overcome disadvantage, have their different needs met or participate in a particular activity. Employers can take positive action in relation to the protected characteristic of age when creating job adverts. For example, they could state that applicants from school-leavers or career-changers are welcome.

Positive action differs from positive discrimination, which might see an employer hire an individual from an underrepresented group solely because of their protected characteristic, where the role could be equally well-performed by someone who does not share that protected characteristic. Positive discrimination remains unlawful under the Equality Act.

What the research says

According to Professor Binna Kandola OBE, a diversity, assessment and development specialist and co-found of Pearn Kandola, age stereotypes and norms in the workplace can heavily influence how older workers (in particular) are seen and how they see themselves. He says: “Many common stereotypes suggest that older employees are less motivated, resistant to change, and less likely to take part in training or career development. While some of these beliefs lack strong evidence, they shape how older workers are treated and what is expected of them.”

Professor Kandola continues: “Often, older workers internalise these stereotypes, believing narratives that link aging to declining health, productivity, and engagement. This ‘health pessimism’ can lead them to feel ‘too old’ for certain opportunities, causing them to self-limit or step back from career advancement. Instead of pushing for resources or opportunities, they might withdraw or retire earlier than they need to, reducing their participation in the workforce.”

Further, Professor Kandola explains that workplace policies and practices also play a role in reinforcing these stereotypes. “Many organisations have age-based expectations about what people should be doing at certain stages of life, which can lead to older workers being overlooked or undervalued. These norms often pit older and younger workers against each other, with concerns about older employees ‘blocking’ opportunities for the younger generation.

However, he goes on to state: “On the positive side, research shows that shifting perceptions of older workers can have big benefits. When older employees are seen as experienced, reliable, and capable, they’re more likely to stay engaged, keep learning, and delay retirement. Breaking down these age stereotypes and norms is key to creating a more inclusive and fairer workplace for everyone.”

 

How can employers mitigate the risk of age discrimination claims?

 

Employers should reflect on policies and practices within the workplace to ensure they do not directly or indirectly discriminate against individuals on the basis of age. Training on what can amount to age discrimination and enforcing a workplace culture that respects all individuals regardless of their age will also help to minimise the risk of discrimination (and alleged discrimination) occurring in the future.

 

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