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Employment Age Discrimination

Age discrimination occurs when someone treats a person less favorably due to that person's age.

Age discrimination in employment can affect anybody no matter how old they are. The law applies to discrimination in employment and in training and education. This includes access to help and guidance, recruitment, promotion, development, termination, perks and pay. As well as employers it also applies to providers of vocational training, trade unions, professional associations, employer organizations and trustees, and managers of occupational pension schemes.

The age discrimination regulations do not however apply to goods and services, so as an example insurance companies and health care providers will be able to continue to discriminate on the basis of age.

Overview of the Legislation

Age discrimination can take many forms but follows the same pattern as other forms of discrimination law in the UK. This includes:

  • Direct Discrimination - treating someone less favorably because of their age or the age they appear to be. So not employing people because they are over 55 fits this category.
  • Indirect Discrimination - this involves having a policy or practice that puts people of a certain age at a disadvantage. For example, only recruiting recently qualified accountants may fit this category as these are likely to be younger people.
  • Harassment - this is unwanted conduct on the grounds of age, which has the purpose or effect of violating a person's dignity, or creating an intimidating, humiliating or offensive environment for that person. For example, age-related jokes in the workplace fit this category.
  • Victimisation - this arises from being treated unfairly as a result of making a complaint of age discrimination. For example, not promoting someone because they complain that younger employees are being favored in their training.

Direct and indirect discrimination are unlawful UNLESS the employer can justify the discrimination. To do so the employer must show that it is a proportionate (appropriate and necessary) way of achieving a legitimate aim.

Harassment and victimisation will always be unlawful.

Recent Amendments to the Equality Act 2010

From 1 January 2024, the Equality Act 2010 was amended to retain several important principles from European case law that may have otherwise been lost post-Brexit. These changes clarify how certain aspects of discrimination law should be interpreted in UK courts. Key points include:

  • Indirect Discrimination by Association: Employers can be liable if a policy indirectly discriminates against someone associated with a protected group (e.g. someone caring for an elderly parent being affected by a rule that disadvantages older people).
  • Discrimination by Perception: This protects individuals who are perceived to have a protected characteristic, such as age, even if they do not actually possess it.
  • Single Source Test (Comparator for Equal Pay): Allows equal pay claims across different employers if pay decisions come from a single source responsible for the pay structures.
  • Burden of Proof Clarity: Reinforces that once a claimant establishes facts suggesting discrimination, the burden shifts to the employer to prove otherwise.

Other Specific Points

  1. Upper age limits for unfair dismissal and redundancy no longer apply.
  2. From 1 October 2011 the default retirement age was scrapped.
  3. Occupational pensions are covered by the regulations, as are employer contributions to personal pensions. However, the regulations generally allow pension schemes to work as they do now.
  4. The regulations do not affect state pensions.
  5. Length of service requirements for employment benefits practices of up to five years qualify for a special exemption and are deemed not to be unlawful age discrimination. If the period is longer than five years this may also be lawful if the employer can show that is expected to meet a business need such as to reward loyalty, to encourage motivation, or to recognise the experience of a worker.
  6. The upper age limit of 65 for Statutory Sick Pay is removed.
  7. Employers can take positive action to prevent or compensate for disadvantages by people from a certain age group. Positive action is allowed to encourage people to take up employment positions and to get access to training and education. For example, employers could aim their recruitment advertising at older people but the position must be open to people of all ages.
  8. An employer can discriminate on the grounds of age if this is required by existing law, such as being aged at least 18 to work behind a bar.

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