People in the UK are working longer for many reasons, including a rising state pension age currently 66 but increasing to 67 between 2026 and 2028, inadequate retirement savings, the rising cost of living and, for many, the social benefits of staying in work.
Although many people want or need to work for longer, some people may feel that their age is a barrier. While age discrimination can happen in any industry, in sectors where the workforce tends to have a young median age such as advertising, finance and tech, ageism can be particularly prevalent. This is certainly our experience as employment solicitors who increasingly see clients who have been pushed out because of their age.
So, what do you need to know and do if you believe have been the victim of age discrimination at work?
Know Your rights
Age is a protected characteristic under the Equality Act 2010, which means employees are safeguarded against:
- Direct discrimination – for example, compulsory retirement provisions – although this can be justified if the employer can establish that a compulsory retirement age is a proportionate means of achieving a legitimate aim, for example creating a balanced workforce or promoting inter-generational fairness;
- Indirect discrimination – where a workplace policy or practice applies to everyone, but has a disproportionate impact on older or younger workers. For instance, scoring criteria in a redundancy selection process such as ‘length of service’ or ‘last in first out’ are likely to indirectly discriminate against younger employees whilst “future potential” may put older employees at a disadvantage;
- Harassment – unwanted conduct related to age that creates a hostile working environment. This can include bullying, nicknames and inappropriate jokes, questions and comments
- Victimisation – where an employee is treated unfairly because they complained of age discrimination or supported someone else’s complaint.
Age discrimination can occur in recruitment, training, promotion, pay and terms and conditions, performance management, redundancy and retirement. It is important to note that the law protects employees of all ages. While most claims are brought by older workers, younger employees may also experience discrimination, for example as a result of discriminatory recruitment process or redundancy selection criteria as detailed above or assumptions that they lack credibility because of their age.
Mandatory Retirement Age – Watch This Space
Whilst less common than they used to be, some organisations maintain compulsory retirement policies. They are likely to avoid liability if they can establish that the policy is justified in pursuit of a legitimate aim and proportionate and necessary to the aim pursued.
It should be noted, however, that, with longer life expectancies, it is likely that a tribunal may determine that a compulsory retirement age at 60 or 65 (e.g., close to the state pension age) is no longer proportionate. In Willey v England and Wales Cricket Board Ltd ET Case No.2201406/14, although the ET held that a compulsory retirement policy at age 65 was a proportionate means of achieving the legitimate aim of succession planning, the tribunal commented that going forwards, 65 may no longer be justifiable and the fixed retirement age might have to increase.
It is therefore possible that a tribunal in the future may conclude that a compulsory retirement policy at 60 or 65 is disproportionate in circumstances where the state retirement age is significantly higher and there is an expectation that older individuals will continue to participate in the labour market beyond what is currently accepted as the norm.
Gather evidence
As with any discrimination claim, one of the most challenging aspects is proving that the detrimental treatment is because of the protected characteristic of age.
One of my own recent cases illustrates this point well: an employee who was the oldest in his organisation was selected for redundancy. On its own, this fact would not have been enough to establish age discrimination . However, because he had kept a detailed diary of offensive and humiliating age-related comments made by colleagues and managers over several years, the tribunal accepted that age had been a factor in his treatment. The contemporaneous notes tipped the balance in his favour.
So if you feel that you are being subjected to detrimental treatment because of your age (or perceived age), a key first step would be to keep a detailed diary of discriminatory comments, decisions and/or incidents as they happen. Evidence of this kind can make the difference between a claim that fails and one that succeeds.
Act promptly and follow procedures
Acting promptly is critical. The time limits for employment tribunal claims are short and strictly applied: usually three months less one day from the discriminatory act. You will need to:
- Raise a grievance internally – show that you have tried to resolve the matter within your organisation. Employers with proper HR procedures should act quickly, but if they don’t, it could strengthen your case.
- ACAS early conciliation (‘EC’) – before a claim can be issued, you must register with ACAS, the independent body that helps employees and employers resolve disputes. A conciliator will explore whether the matter can be resolved without going to tribunal. If not, ACAS will issue a certificate that allows you to proceed. Importantly, initiating Acas EC will also ‘stop the clock’ in terms of the 3 month limitation period.
- Employment Tribunal – with the certificate in hand, a claim can be lodged. Generally the claim must be issued within 1 calendar month of the Acas EC certificate.
Even if the three-month deadline has passed, earlier incidents may still be considered if it can be established that they form part of an ongoing course of conduct culminating in a more recent discriminatory act. However, it is always safer to act within the time limit.
Seek advice early
Discrimination cases are complex so you should seek advice from a specialist employment solicitor as soon as you suspect an issue. Our specialist solicitors will be able to advise you on the strength of your claim, ensure that critical deadlines are not missed and will be able to identify where discrimination may provide additional leverage in negotiating an exit package or settlement.
Compensation
Compensation can include:
- Loss of earnings – where the discrimination has directly affected employment or pay.
- Injury to feelings – an award recognising the personal impact of discriminatory treatment. Although age discrimination claims are uncapped, there are guidelines, which set different levels of compensation depending on the severity of the discrimination.
- Aggravated damages – where the discrimination is found to be particularly severe or oppressive.
- Personal injury – where the discrimination causes the employee to suffer personal injury.
In practice, most cases settle before reaching a tribunal because most companies are keen to avoid the cost and reputational risk of litigation. Equally, we usually advise our clients to consider negotiating a settlement to avoid the stress and cost of tribunal proceedings.
Conclusion
Although age discrimination claims can be difficult to prove, employees should not be discouraged. By keeping careful records, acting quickly, and seeking early advice, you can protect your rights and improve your prospects of a successful outcome.