Age Discrimination

Shutterstock 117874894If you are a manager or you are recruiting people to work for you, you must not treat your employees unfairly or put them in disadvantageous position because of their age.

Age is a protected characteristic and you can make decisions based on your employees’ age only if you can show that the decision is objectively justified.

Recruitment and selection

You can only use age as a factor in the job selection processifyou are trying to redress an age imbalance among the workplace by encouraging applications from age groups who would not usually apply for theparticular job.

Asking for the age of the applicant on application forms is not in itself unlawful, but it increases the riskof age discrimination. Many organisations usea separate diversity monitoring form to gather and record age-related information.

Diversity monitoring

Age diversity monitoring is the statistical analysis of employees' ages done by your HR department,with regards to recruitment, promotion, training, discipline, leavers, etc. This system helps you to identify potential problems and provide evidence for objective justification of your decisions.

Medical advice

Age should not be taken into account if your employees’ fitness and ability to do a job has to be assessed for whatever reason. All physical tests must be the same for all employees, regardless of their age.

Rewards

The terms of your employees’ contracts concerning pay must not relate to their age. Instead, such terms should be based on the performance and contribution of the employee. However, there are certain exceptions where you can legally considerthe worker’s age with regards to their payment:

  • compliance with the National Minimum Wage 
  • compensation for redundancy
  • workplace pension schemes – you have the right to set the age at which you can receive it, as long as it is over 55 

Training and development

You should not excludeany of your employees from any training or development programme only on the basis of their age. Any training programme must be available to all employees.

Promotion

A promotion or appraisal offered to your employees by your company should not be based on any protected characteristic such as age.

Retirement

Until October 2011, there was a compulsory retirement age of 65 but this has now been abolished. You as an employer must now follow the same dismissal procedures to terminatethe employment of an older employee as you would with someone younger. Anything else would be considered unfair dismissal and age-based discrimination.

You must give your employees at least six months' notice of their retirement date. 

After employment

You may be liable for discriminatory actions or harassment even after the employment relationship with your worker has ended. For example, if you have agreed to provide a reference at the end of the employment and you refuse to provide it or give unflattering one for former employee with regards to their age. (“I cannot recommend “A” for that job because they are too young.”)

Also, the Court of Appeal has confirmed that post-employment victimisation is in fact prohibited by the Equality Act even though it is not expressly stated.

Therefore,you can be liable for victimising current or former employees that have made or assisted in discrimination claims. For example, if you maliciously contact the UK Border Agency and request an investigation of one of your former employees’ immigration status or treat one of your workers disadvantageously because they testified against you in the Court your actions will be considered unlawful.

To avoid victimisation claims, you, as an employer, should aim to treat current and former employees consistently. You must also keep in mind that you may be liable for any victimising act even if the act that led to the victimisation was in fact lawful. For example, if you are accused of discriminating against one of your employees and in act of retaliation you terminate their contract, you could still be liable for terminating their contract unlawfully even if the action beforehand was in fact lawful.

Review

You should initiate an age review in order to measure the level of equality already present.

After the audit is carried out, you should carefully examine all aspects of the business' people management, policies, practises and procedures to ensure that age discrimination does not and cannot take place. You should then initiate amendments and update practise wherever necessary.

Policy

You, as an employer, should implement policies with a view to tackling age-based discrimination within the workforce - promoting equality, diversity and inclusion wherever possible. All managers and employees should have these policies explained to them and should be trained where relevant to do what they can to eliminate discrimination.

Where possible, you should try to avoid the use of a retirement age. If it is deemed absolutely necessary, then this necessity must be demonstrated so that it is clearly a legitimate provision and not a form of discrimination.

Another policy which is very helpful in avoiding discrimination is to implement a standard reference form for former employees. In order to avoid subjectivity the standard references only confirm the job title and dates of employment.

Content on Access Solicitor is not legal advice, and is made available subject to our terms of use. If you need more details on your rights or legal advice try using the Access Solicitor search to find the best lawyer for you.




Request a Callback X

Hi ,

Thanks for contacting Access Solicitor. We'll get back to your enquiry as soon as possible, and during normal business hours this should be within the next 30 minutes. We look forward to helping you find the legal advice you need.

Best,
Access Solicitor Customer Care