Overview
- The prohibition on discriminating on the grounds of age in the Equality Act 2010 applies to a wide range of individuals, including employees (both those on fixed and indefinite term contracts), job applicants, contract workers, company directors and partners.
- It is unlawful to discriminate on the grounds of age (or perceived age) in the fields of employment and training.
- Direct discrimination, indirect discrimination, victimisation and harassment on the grounds of someone's age are therefore unlawful if they occur in the course of an individual's employment. Job applicants are also protected during recruitment and selection.
Unlawful discrimination
- Direct and indirect discrimination, harassment and victimisation on grounds of age are unlawful.However, neither direct nor indirect age discrimination is unlawful if the employer can prove that it is justified - unlike the law covering other types of discrimination which only allow employers to justify indirect discrimination.
- The protection afforded by the law continues after the relevant relationship has ended so long as the discrimination or harassment arises out of or is closely connected with that relationship. So, for example, when giving a reference for a former employee a referee will need to ensure that the former employee’s age does not in any way influence what is written.
- An employer must take reasonable steps to prevent the discriminatory acts of its employees otherwise it will be vicariously liable for them. The issue of vicarious liability arises most commonly in cases of harassment. Remember also that an employee who commits a discriminatory act will be personally liable.
Justifying age discrimination
- A key feature of the law is that employers can defend themselves against both direct and indirect discrimination claims if they can show that the discrimination in question is objectively justified. Objective justification will exist if the employer can show that the discrimination is ‘a proportionate means of achieving a legitimate aim’.
- Examples of legitimate aims may include facilitation of employment planning or encouraging or rewarding loyalty.
- As for proportionate means, it is imperative that the means must actually contribute to the pursuit of the legitimate aim, i.e. a causal link must be established between the aim and the means of achieving it. It may not, however, be enough merely to establish a causal link. An employer should weigh up the importance of pursuing the legitimate aim against the discriminatory effect it entails. If there are a number of different ways in which an employer can achieve the same aim, then it should pursue the least discriminatory way.
- As to proving objective justification, employers will need to produce evidence of objective justification – assertions alone will not be enough. If a policy could be discriminatory, keep a written statement on file setting out why it is objectively justified.
Recruitment
- Discrimination on the basis of age in recruitment is unlawful unless it can be justified.
- From April 2011 the default retirement age will begin to be phased out with total abolition by October 2011, see LawTracker.
- Managers should be trained so that they can identify and avoid making decisions based on stereotypes, e.g. the assumption that younger workers do not have the skills for management or older workers are set in their ways.
- From April 2011 employers will not be able to stop people from applying for a job if they are aged 65 or over, or are within six months of the age of 65.
Service-related benefits
- Because enhancing benefits for longer serving staff is commonplace, the law contains special rules that govern when an employer may link benefits to service. This applies to pay as well as non-pay benefits (e.g. increased holiday after 10 years' service).
- Provided the benefit is awarded on the basis of service not exceeding 5 years in length, it is allowed and no further justification is needed.
- For benefits awarded on the basis of more than 5 years' service, the rules are different. Such benefits are permitted provided it reasonably appears to the employer that using the length of service criterion fulfils a business need. The examples of a 'business need' provided in the law are encouraging loyalty or motivation, or rewarding the experience, of some or all workers.
- A requirement for a certain length of experience for recruitment or promotion must be objectively justified. If a certain level of experience is essential for the role this should mean that the requirement can be justified.
- It will not always be self-evident that a requirement for recruitment or promotion is potentially discriminatory. Employers should consider carefully whether any of the requirements could have a potentially discriminatory effect. For example, a qualification requirement may disadvantage certain age groups (e.g. media studies in the case of older people). If it does, it must be objectively justified.
Redundancy pay
- The statutory redundancy payments scheme is open to employees of all ages, including those over 65 who are still working. The 2-year qualifying period remains, however, along with the 20-year cap on service counting for payment. The different age multipliers used to calculate statutory redundancy payments (i.e. 18-21, 22-40, 41 and over) still apply (to reflect the different position of older and younger workers in the labour market).
- Enhanced redundancy schemes can continue, but they have to comply with certain rules. They must mirror the statutory redundancy payments scheme but provide enhancements consisting of one or more of the following:
- removing or increasing the statutory cap on a week's pay
- increasing the factors applied to each age group under the statutory scheme in the same proportion in every case, e.g. doubling them so that the number of weeks' pay awarded is 1-2-3 instead of ½-1-1½ weeks' pay, according to age group
- multiplying the final figure by a further factor, e.g. doubling the amount of redundancy pay calculated according to the statutory scheme (or the statutory scheme as adjusted above)
- Using length of service as a criterion for deciding who should be made redundant may discriminate against younger workers and criteria such as willingness to learn or ability to change need to be applied carefully to avoid stereotypical assumptions being made about older workers.
Retirement
- There is no longer an age limit for making unfair dismissal claims (or redundancy claims).
- The default retirement age will begin to be phased out from April 2011, with total abolition by October 2011 - see LawTracker.
- A retirement by the employer will be unlawful age discrimination unless it can be objectively justified as a proportionate means of achieving a legitimate aim.
Default retirement age
- The Default Retirement Age (DRA) – more properly called the compulsory retirement age – will be abolished from April 2011, see LawTracker.
- From 6 April 2011 transitional arrangements apply. These will be relevant where retirements have already been initiated, i.e. where the employer has chosen to give longer than the current minimum 6 months, but no longer than 12 months, notice of enforced retirement, so that on 6 April 2011 some employees are already under notice that they are to retire.
- Under the DRA employers must give a minimum of 6 months notice of retirement but no more than 12 months notice. Retirements notified on or before 5 April 2011 can continue through to completion provided that the following conditions are met:
- the DRA procedure, as set out in the previous Employment Equality (Age) Regulations 2006, is followed correctly (including the employee’s right to request to stay on is given serious consideration by the employer)
- the person retiring reaches 65 or the normal retirement age (if this is higher) before 1 October 2011. Therefore an employee must be 65 by the 30 September if they are to be retired using the DRA
- Employers will not be able to issue notifications of retirement using the DRA after 5 April 2011. Employees may be given between 6 and 12 months notice of retirement and a further extension of employment of up to 6 months may be agreed following an employee request to work on. The absolute last date on which enforced retirement can take effect under the DRA procedure is 5 October 2012.
- The provision allowing short (2 weeks’) notice of retirement, will also be repealed on 6 April 2011, and such short notice notifications will not be permitted on or after this date.
- Any compulsory retirements taking effect after 1 October 2011 will be unlawful age discrimination (and potentially unfair) unless they can be objectively justified – likely to be a difficult to prove.
- See two useful publications from SAGA: Rethinking Retirement - An Employee's Guide to Working Life without a Default Retirement Age and Rethinking Retirement - An Employer's Guide to Managing the Workforce without a Fixed Retirement Age.
Pension schemes
- Discrimination or harassment on the grounds of age by the trustees or managers of occupational pension schemes against a member or prospective member is unlawful.
- However a wide range of rules or practices are specifically exempted. These include the fixing of ages for admission; the use of a normal retirement age; the use of age criteria in actuarial calculations, and setting pension benefit levels by reference to length of service
- Age-related provisions not specifically exempted must be objectively justified.
Tribunal claims and remedies
- Claims must generally be presented to a tribunal within 3 months from the date of the act complained of.
- A questionnaire procedure for aggrieved employees is available and employers must take care when responding to such questionnaires.
- As with other forms of discrimination, an employee will only need to prove facts from which a tribunal could conclude that there has been discrimination. The employer then has to prove that discrimination has not taken place.
- Compensation awards are uncapped and may include compensation for injury to feelings.
Resources
ACAS
CIPD
Equality and Human Rights Commission
Other organisations that provide useful guidance include the Employers Forum on Age and the DWP (via its Age Positive microsite).
Subscribers only - the employment team at 
