What is Age Discrimination?

Age discrimination occurs when someone is targeted deliberately or due to the operation of a workplace practice, because of their age. Age discrimination can take three forms – direct discrimination, indirect discrimination, and harassment.

If you have suffered age discrimination, it is likely that you also have a constructive dismissal claim as well as a discrimination claim, which will mean that you will have a valuable case. Our partners will be able to provide you with a free consultation and agree a strategy with you to achieve the outcome you want.

Direct Discrimination

Direct discrimination occurs when someone treats you less favourable because of your age. This may include, for example, being passed over for promotion, being paid less or being excluded from future plans because of your age.

Unlike other forms of direct discrimination, direct discrimination is able to be defended by your employer via a defence of justification. Your employer can defend the case if it can establish that the discrimination that you suffered was a proportionate means of achieving a legitimate aim.

A common example of a defence of justification is in the event of a retirement clause in a contract of employment or partnership agreement. A clause requiring an employee or partner to retire at a certain age is direct discrimination on the grounds of age; however, employers can justify the discrimination caused by the clause by providing reasons why the clause was a proportionate means of achieving a legitimate aim.

In practice, this means that the employer has to prove that the means that caused the discrimination (the retirement clause) was justified because of the aims the business wished to achieve by them. So the employer must demonstrate to the employment tribunal what its aims were and that they were proportionate. Commonly, the aims in a retirement case are that the employer wished to provide opportunities for younger employees to be promoted for succession planning purposes, for employee retention and that older employees have a financial cushion in retirement to mitigate any discriminatory effect. These factors must really exist in the business, although the employer need not have actively thought about them at the time the discrimination took place.

Key point

It is much easier for your employer to justify something like a retirement clause than other forms of direct age discrimination, such as being paid less of a bonus or treated less favourably in other ways.

This is because everyone retires from work, whereas there is no readily available justification for paying someone less of a bonus because of their age if their performance is the same as older or younger workers.

The harsher the effect of the discrimination, the higher the level justification is required by the employer. This goes to the “proportionate” part of the test.

Indirect Age Discrimination

Indirect age discrimination is less common than direct discrimination and occurs when an employer applies to its employees generally a provision, criterion or practice that when applied to its workforce has the effect of placing employees of a certain age at a disadvantage.

A common example of indirect age discrimination is where an employer imposes a requirement for a certain number of years’ experience on a job advertisement, or when an employer mandates that a certain qualification is required for the role which is more likely to be held by (for example) a younger person.

Indirect discrimination is able to be justified by an employer in the same manner as direct age discrimination, by demonstrating that the discriminatory effect was a proportionate means of achieving a legitimate aim, although the bar is set lower than direct discrimination.

The main indirect discrimination claims in the employment tribunal systems in recent years have been in respect of indirect discrimination in public sector pension schemes involving police, firefighters and judges.

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Harassment on the grounds of age is unlawful discrimination. The definition of harassment can be found on our fact sheet on harassment. In order for harassment on the grounds of age to be proven, you must demonstrate that the motivation for, or the effect of, the harassment was because of your age.

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