This guide sets out the basic employment rights to which workers are entitled under the age discrimination provisions of the Equality Act 2010. These apply in England, Wales and Scotland (except where indicated) only.
This guide covers the following topics:
The act covers all forms of discrimination in the workplace including recruitment, terms and conditions, promotions, transfers, dismissals and training or any other detrimental treatment because of age.
The act covers all forms of employment and applies to apprentices, those working under a contract of employment and the self-employed working under a contract personally to do the work.
Ex-employees can also make a claim against a former employer if they are complaining about something that was closely connected to their employment.
The employer is generally liable for acts of discrimination, harassment and victimisation in the workplace. However, individual employees may also be liable, for example, if they have subjected a colleague to harassment related to age.
Age discrimination can arise:
This means treating a person less favourably than someone else because of age. Under the act a person claiming discrimination because of the particular characteristic of age means a particular age group. In other words, someone bringing a claim on this ground can define the particular age group to which they belong. For example, the age group could be “21-year-olds” or “the under-50s”.
In order to determine whether someone is directly discriminated against, a comparison has to be made with someone not of that particular age group, whose circumstances are the same or not materially different.
The definition is wide enough to cover those who are also discriminated against because they are perceived to be of a particular age group or because they are associated with someone of a particular age group.
Examples of direct discrimination include:
Unlike other forms of direct discrimination, employers can justify direct age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”.
The legitimate aims in a direct age discrimination claim are different to those in an indirect age discrimination claim. The Supreme Court held in Seldon v Clarkson Wright and Jakes that direct age discrimination can only be justified if the legitimate aims are in the public interest. Examples include enabling young workers to gain access to employment and avoiding the need to dismiss older workers on grounds of performance.
This arises if an employer applies a provision, criterion or practice (PCP) - whether formal or informal - which applies or would apply to everyone equally, but which puts or would put those of a particular age group at a disadvantage and the employer cannot justify it.
Employers can justify indirect age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”, and unlike direct age discrimination, this includes employer’s business reasons.
This occurs when one person subjects another to unwanted conduct related to age that has the purpose or effect of violating a person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.
The definition of harassment also applies to those subject to unwanted conduct because of another person’s age. So, for example, an employee who is subject to offensive comments about their elderly parent will be protected under the act.
Those who are perceived to be of a certain age group and who are subject to harassment related to that perception are also protected.
Unwanted conduct covers overtly ageist behaviour such as verbal put downs or expressions or assumptions about the worker’s capabilities, as well as bullying behaviour with no direct ageist content but which is only directed at that person because of their age. For instance, if an employer shouts at a younger worker when they would not have shouted at an older colleague.
In determining whether conduct amounts to harassment, a Tribunal will take into account the perception of that person; whether it was reasonable for them to consider the comments or behaviour amount to harassment and all the circumstances of the case. For example, taking into account the Equality and Human Rights Commission’s Employment Code.
This occurs when an employer subjects a person to a detriment because they have done or may do a protected act.
A protected act includes:
The person complaining of victimisation does not need to show they are of a particular age group in order to bring a claim. However, they do have to have acted in good faith when doing a protected act. A false allegation will not amount to a protected act.
The act does not apply when the employer can show that there is an occupational requirement relating to the nature of the job which means they need to recruit someone of a certain age, as long as they can show it is a proportionate means of achieving a legitimate aim.
The occupational requirement applies only to direct discrimination in recruitment, promotion, transfer and training and not to the way in which an employer affords access to benefits, facilities or services.
The requirement must relate to the nature or context of the work. It must be a proportionate means of achieving a legitimate aim. A sham or pretext will not be a proportionate means of achieving a legitimate aim.
Case law has established that the occupational requirement provisions cannot be used by employers to implement positive discrimination, however desirable that might appear to be.
There are very few circumstances where age can be a valid occupational requirement for a job. One example would be where an acting part requires an actor of a particular age.
The act does not apply when calculating statutory redundancy pay (which is calculated by reference to age and length of service and which is only payable to employees who have two years’ continuous service) or contractual redundancy pay schemes which are calculated on the same basis as statutory redundancy pay.
The act does not apply to the national minimum wage provisions, the amounts of which depends on age.
Any benefits (such as holiday entitlement or pay linked to length of service) that depend on less than five years’ service are specifically exempted from the act.
If the benefit requires more than five years’ service, employers have to show that they reasonably believe that the benefit fulfils a business need, such as encouraging loyalty and motivation or rewarding experience.
No, employees of any age can claim unfair dismissal, provided they have two years’ continuous service.
An employee with two years’ continuous service may be able to claim a statutory redundancy payment if they have been dismissed for redundancy.
The act allows employers to treat someone with a protected characteristic of age more favourably during the recruitment or promotion process.
If they reasonably think that the person with a protected characteristic of age suffers disadvantage because of age (or there are fewer people of the same age group are employed), employers can choose a person with the protected characteristic of age over someone who is not of the same age group provided that:
These provisions are voluntary. A worker cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were discriminated against during it.
Someone complaining of discrimination has to prove, on the balance of probabilities that their employer discriminated against them. Tribunals are aware that it can be difficult for claimants to provide clear evidence of discrimination.
As a result, tribunals often have to decide cases on the basis of whether an inference of discrimination should be made from the primary facts. Those inferences are governed by section 136 of the Equality Act 2010, which has a two-stage process of proving discrimination.
So, for example, where a worker complains that their employer failed to promote them because of age, the evidence may point to the possibility of age discrimination. If the employer has no explanation, or if the tribunal finds their explanation is inadequate or unsatisfactory, it can infer that the discrimination was because of age and therefore unlawful.
Workers can use the ACAS (Advisory, Conciliation and Arbitration Service) guidance, ‘asking and responding to questions of discrimination in the workplace’ which is available at www.acas.org.uk to request information from the employer which is relevant to a potential claim of discrimination.
Although the employer is not under a legal obligation to respond if the case proceeds to an employment tribunal hearing, an employment tribunal may draw an inference if the employer does not respond or its replies are evasive.
It is important in most cases to submit a written grievance in order to comply with the ACAS code of practice on disciplinary and grievances. A failure to do so can lead to a reduction in any compensation where a claim is successful.
Claims must be brought within three months less one day of the act of discrimination that the person is complaining about. In exceptional circumstances the three month time limit may be extended if a tribunal believes that it is just and equitable to do so.
Where the discrimination has occurred over a long period of time, this may amount to a continuing act extending over a period. A claim must then be brought within three months less one day of the last act in the series of acts.
Early conciliation applies which means that ACAS must be contacted before the tribunal time limit expires. An early conciliation form can be completed at www.acas.org.uk
An early conciliation certificate will be issued after the period of v(which usually lasts between two and four weeks) which has an early conciliation number. This must be put on the employment tribunal claim form (ET1). If it is not, the tribunal claim form will be rejected and the claim may go out of time.
There are three remedies available to a tribunal.
Declaration
A declaration is a statement of the rights at the end of a claim, for instance that a worker has been subject to direct discrimination.
Compensation
Compensation can be awarded for injury to feelings and financial losses, if there are any. This will vary from case to case and depends on the individual circumstances. There is no statutory limit to the amount of compensation, which can include; loss of earnings (past and future), loss of pension, interest and any other outlays associated with the discrimination.
The amount of compensation for injury to feelings can vary enormously. Generally, injury to feelings fall into one of three bands: lower, middle and upper depending on the impact that the discrimination has had on the person bringing the claim.
Aggravated damages (not applicable in Scotland) can also be awarded if the tribunal is satisfied that the employer has behaved in a high-handed, malicious or insulting way which has aggravated the injury to the claimant’s feelings.
Claimants can also ask for compensation for personal injury if they have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, claimants need to produce a medical report to support their claim.
Recommendations
The tribunal can make recommendations for the purpose of preventing or reducing the effect of the discrimination on the claimant. This means that recommendations will not normally be made if the claimant has resigned or has been dismissed, which is often the case.
Examples of recommendations tribunals can make include requiring an employer to:
A tribunal cannot recommend that a person be given a job in a case where a worker successfully claimed they were discriminated against in a promotion exercise, for example. This is because that would amount to positive discrimination which is unlawful under the act (and is different to positive action).
If the employer fails without reasonable excuse to comply with a recommendation, then the tribunal may order the compensation to be increased.
Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day-to-day decisions, both in terms of service delivery and employment. This consists of a general duty and specific duties.
The general duty has three aims and requires public bodies to have due regard to the need to:
The specific duties are designed to help public bodies comply with the general duty. The specific duties for devolved public authorities are different in England, Wales and Scotland. Trade unions should therefore check that the employer is complying with the relevant duties.
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