Employment law- Age Discrimination
What is age discrimination?
Age discrimination is where you are treated unequally because of your particular age or because you belong to a range of ages (e.g. 40 – 60 year olds or over 30’s). The Equality Act 2010 (“the Act”) provides that age is a ‘protected characteristic and, accordingly, any age discrimination is unlawful, unless it can be justified. The law is designed to protect employees and workers of any age during all aspects of employment, including:-
- employment terms and conditions
- pay and benefits
- promotion and transfer opportunities
Who is protected by the Equality Act?
The Act applies to all employees (fixed and indefinite term), job applicants, trainees, contract workers, office holders (including company directors and partners), those who are on secondment and the self-employed. The Act covers all areas of employment including recruitment, selection and promotion, the provision of training, the provision of benefits, retirement and occupational pensions. The Act does not just apply to older employees, but also younger ones. For example, it will also be unlawful for an employer to impose a lower age limit when recruiting, unless this age restriction can be objectively justified.
How easy it is to prove discrimination?
The tribunals are well aware that direct evidence of discrimination is rarely forthcoming and it is now readily accepted that discrimination need not be conscious. Some people have an inbuilt and un-recognised prejudice of which they are unaware.
Furthermore, a discriminatory reason for your employer’s conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of ‘significant influence’.
However, the Tribunal in most cases will still have to discover what was in the mind of the alleged discriminator, and the onus of proof is on your employer to show that there was no discrimination. In every case it is crucial to enquire why an employee has received less favourable treatment, and whether it was on the grounds of race or some other reason. This may be, for example, because you were not so well qualified for the role. Save in the obvious cases, asking the crucial question of your employer will call for some consideration of the mental process of the alleged discriminator (e.g. your line manager), together with the treatment you received as a consequence.
Accordingly, as direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming, the grounds of the decision or act by your employer would have to be deduced, or inferred, from the surrounding circumstances.
A SUMMARY OF THE PROTECTION UNDER THE EQUALITY ACT FOR AGE DISCRIMINATION
Age discrimination can occur in several forms, namely: direct discrimination, indirect discrimination harassment and victimisation. Direct discrimination and harassment have been extended to cover not only discrimination because of your own age but also discrimination as a result of your ‘perceived’ age (whereby the discriminator believes that you are older/younger than you are) or because you ‘associate’ with someone of a certain age.
This is where you have been, or would be treated less favourably than others because of age, whether it is your age, your perceived age or the age of someone you associate with. For example, if an employer were to promote another employee ahead of you because he/she was younger, you could claim direct age discrimination. This form of discrimination requires a comparison with colleagues who do not share your age characteristic but are similar in other respects, so that you can demonstrate a particular disadvantage to yourself as a result of being of a different age. Direct discrimination can be objectively justified by your employer. Note: it is irrelevant that the person who discriminates against you has the same age. So, for example, if an employer rejects your job application because you are 56, he cannot argue that he is not liable for a discrimination claim because he is also in his 50s.
This is where a practice, provision or criterion (i.e. a rule relating to your employment), implemented by your workplace and which applies equally to all persons, puts you at a disadvantage because of age compared to other employees. It is irrelevant that the discrimination was not intentional. So if your employer only lets employees who have ‘recently graduated’ attend a training course, it is likely that very few older employees will be able to attend. This law also protects those who are deterred from applying for a job because they know that a provision or practice of the workplace would put them at a disadvantage. As with direct discrimination, it is necessary to compare your situation with other colleagues who don’t share your age. Indirect discrimination can be objectively justified by your employer.
Age harassment refers to offensive, intimidating or distressing behavior which is based on age and violates your dignity or creates a working environment which is hostile, intimidating or degrading. Common examples might include offensive comments about the natural signs of ageing (wrinkles, baldness etc) or age-related nicknames. This kind of behavior might also include being ignored or being excluded from after-work drinks because of age. Pressure to retire may also amount to age-related harassment.
Just as with direct discrimination, harassment can include age discrimination based on your perceived age or the age of someone you associate with, such as an elderly relative who works with you who is referred to as ‘an old fogey’. Therefore, if you find the behavior offensive, it doesn’t matter that it is not directed at you and that you do not share the protected characteristic.
It should also be noted that age harassment can be directed at younger employees who, for example, have a ‘baby face’. Age harassment doesn’t necessarily have to be directed at an individual or individuals, it can be the general culture of the firm. Examples of this might include the telling and tolerating of ‘ageist’ jokes around the office.
The Act has extended the law on age-related harassment to include third parties ie unwanted conduct from clients, customers or suppliers who are not employees of your company. This means that if your employer is made aware of the situation and fails to take positive steps to prevent third party harassment from occurring on at least three occasions, then he could be liable to you.
This is where you are treated less favourably as a result of you having have made, tried to make, helped someone else to make or assumed to have made, a complaint or grievance of age discrimination under the Act. There is no longer a need to compare your treatment to an employee who has not done one of the above.
How can discrimination be justified?
The law recognises that it is sometimes necessary and justifiable to directly or indirectly discriminate on the basis of age. For this reason, age discrimination is unique amongst the protected characteristics. Therefore, if your employer can show that discriminating against you is a ‘proportionate means of achieving a legitimate aim’, then he may be able to successfully argue that this course of action is justified. Fortunately for employees, this is a difficult test for the employer to overcome and he must have no reasonable alternative. Examples of reasonable justifications might occur where the employer is legally obligated to employ a person of a certain age or where there is a genuine occupational requirement (such as in the selection of cast members because the role requires an actor of a certain age).
What other rights does the Act give?
- You are able to make a claim for unfair dismissal beyond the age of 65.
- You will continue to have the right to claim unfair dismissal after you have reached your employer’s normal retirement age for your job or, if there isn’t one, the default retirement age of 65. Therefore, older employees have the same unfair dismissal rights as those of younger employees.
- You have the right to claim the statutory minimum redundancy payment if you are over 65 (or after your normal retirement age if this is lower).
- An employee can request to work beyond 65. Such request should be made in writing as soon as practical and where possible, at least 4 weeks before the end of the proposed retirement date. The request can even be made up to 4 weeks beyond termination of the contract of employment, but not after this date. A meeting to discuss the request should then be held by the employer within a reasonable period after the employee’s request has been made. An employee’s request to stay on must be considered using a detailed procedure laid down in the Act, and the employer must show there is “objective justification” to retire the employee. The fact that you may have reached a certain age is not in itself a good enough reason to retire you.
- The Act stops age-discrimination in employment and work-related training. Employers have to make sure that any redundancy policies do not directly discriminate against older employees. They should also not discriminate indirectly – for example, by selecting only part-time workers for redundancy, when a large number of these may be older workers. Employers will not be able to discriminate in respect of the benefits they provide to employees over 65. The only exceptions will be where an age requirement can be objectively justified.
Can an employer simply make you redundant at 65 to avoid any liability under the Act?
If the principal reason for the dismissal is redundancy and not because of an employee’s age, then the redundancy will be legal and the employee will be entitled to redundancy pay in the usual way.
Can succession planning amount to age discrimination?
What is succession planning in a business?
Simply put, succession planning is the process by which a business makes contingency plans to ensure the company continues to run as normal if key employees retire or leave the company. This usually includes identifying, training and developing staff members who could replace a colleague in a vital role if needed.
How does this relate to age?
Succession planning by employers can (and often does) lead to age discrimination. A common situation is when a business realises that a large number of senior employees are of a similar age, and may want to retire within the next few years, and there is a large gap to the next layer of employees who may be in their 20s or early 30s. Planning for such a situation often includes considering employees’ ages, and therefore carries a risk of discrimination.
When could succession planning amount to age discrimination?
It is unlawful for an employer to discriminate against an employee on the grounds of age unless this can be objectively justified.
Succession planning can amount to age discrimination, for example, when an employer:
- makes room for a new, younger, employee by removing or side-lining an existing older employee,
- decides to only appoint staff of a certain age to a post (e.g. appointing someone in their late 40s because of the opinion that someone in their late 50s is likely to retire within the next few years), or
- does not consider appointing someone as a potential successor because they are over a certain age, even if they have the right skills to do the job.
Similarly, asking an employee about their retirement plans or referring to them as ‘older’, ‘young’ or as being part of a particular generation (e.g. baby boomers) could be viewed as discriminatory, even if this is in the context of a discussion about succession planning for the business.
Unless they can be ‘objectively justified’ these examples are likely to amount to age discrimination. Objective justification must be a proportionate means of achieving a legitimate aim.
While government guidance suggests that “employment planning” might be an objective justification, it is likely to be difficult to remove an employee from their existing role for the sake of long term planning.
What steps should you take if you think you have been discriminated against because of age?
If you are an employee and still in employment and you cannot resolve the matter informally with your line manager, then it is best to first lodge an internal grievance. This may be appropriate, for example, where you may have been passed over for promotion, or you have been harassed by reason of your age. Your employer will be obliged to convene a meeting without unreasonable delay to discuss your grievance. You may, however, still be able to bring a claim in the Employment Tribunal while you are still employed.
If you have already been dismissed and you think you have been discriminated against, you can lodge a claim for unfair dismissal and age discrimination at the Employment Tribunal. Any claim should be issued within 3 months of the date of dismissal or alleged discriminatory act. It is now mandatory to go through ACAS’s early conciliation scheme before you can submit a claim to the tribunal.
What compensation can you claim for age discrimination?
Unlike in unfair dismissal, there is no ceiling on the amount of compensation a tribunal can award for disability discrimination. Compensation normally includes:
–loss of earnings, which can include past or future losses, unpaid holiday, bonuses, stock options or notice pay;
–an award of damages for ‘injury to feelings‘ (see the injury to feelings compensation guidelines below). This is to compensate you for the upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.
– a personal injury, whether this is due to depression or physical injury (see below);
–aggravated damages. These are awarded in the most serious cases where the behaviour of your employer has aggravated your injury;
–punitive damages. This award is very rare and only in limited circumstances where the compensation itself is an insufficient punishment and your employer’s conduct is very oppressive;
–interest, which can be awarded from the date of the discrimination until the date the Tribunal calculates compensation.
INJURY TO FEELINGS COMPENSATION GUIDELINES
The Court of Appeal have set out 3 bands of compensation guidelines for injury to feelings, depending on the seriousness of the case. These are commonly known as the ” Vento” guidelines, and from 6th April 2023 they are:
TOP BAND FOR THE MOST SERIOUS CASES: £33,700- £56,200 (although it can exceed this in exceptional cases);
MIDDLE BAND: £11,200 – £33,700
LOWER BAND FOR LESS SERIOUS CASES (e.g. a one-off or isolated incident of discrimination): £1,100 – £11,200
Can I also claim personal injury in the employment tribunal due to the discrimination I have received?
As mentioned above, although you cannot bring a standalone personal injury claim in the Employment Tribunal, you can claim compensation for psychiatric or physical injuries which you may have suffered due to the discrimination you have received from your employer.
In most cases, any claim for personal injury within the context of employment law cases relate to psychological injury as opposed to physical injury. This incudes stress and anxiety and injury to feelings, and this has to be attributable to your employers’ conduct rather than for personal reasons. Often, you would need medical evidence to identify whether your injury is indeed caused by reasons of discrimination.
Other than compensation for injury to feelings, as mentioned above, other compensation in the employment tribunal for personal injury is calculated on the following basis:
- “General Damages” (e.g. pain & suffering, and loss of amenity, such as taking part in hobbies or other lifestyle;
- “Special Damages” (this relates to financial compensation, including loss of earnings and other quantifiable sums).
The following factors need to be taken into account when valuing claims of psychiatric injury:
a) the injured person’s ability to cope with life and work;
b) the effect on the injured person’s relationships with family, friends and those with whom he comes into contact;
c) the extent to which treatment would be successful;
d) future vulnerability;
f) whether medical help has been sought;
g) whether the injury results from sexual and/or physical abuse and/or breach of trust; and if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.
What am I unable to include as part of my discrimination claim?
You will be unable to claim for the following:
- loss of reputation;
- injury to feelings for each alleged act of discrimination (unless you have discriminated for more than one protected characteristic (such as race, sex, disability etc.);
- an apology;
- costs (usually these are not awarded should you win or lose a tribunal case).