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Age Discrimination in the Workplace

Ageism, age diversity and age discrimination legislation are now significant aspects of employment, retirement, and life beyond work.

  • Age diversity offers positive advantages for healthy organisations, just like any other sort of diversity in work and life.
  • Treating people fairly, regardless of age, is central to the principles of ethical business and ethical organisations.

Ageism and related issues are especially relevant in the UK given the 2010 Equality Act, which extended and superseded the Employment Equality (Age) Regulations of 2006. This aspect of age equality at work is consistent with legislation across Europe.

Understanding these issues will also be helpful for you as an individual, to understand your rights (for example relating to the behaviour of an employer, or pensions or retirement) and your personal responsibilities.

  • Responding to discrimination legislation is not difficult for good organisations; the UK regulations do not challenge any employer-organisation already treating its people fairly and ethically.
  • As such these principles provide a helpful model for adopting age equality provisions for any organisation anywhere in the world.

As a worker or employee or manager, etc., you are also affected individually by age discrimination regulations.

In addition to giving people protection, the UK discrimination legislation also places certain responsibilities on individuals:

  • The regulations allow for individuals to be held responsible for certain types of discriminatory behaviour against others (and to be pursued for compensation), aside from the responsibility of the employer or organisation.

UK Age Discrimination Regulations

Here's a brief practical summary of the UK Age discrimination regulations and their implications, initially effective in 2006, later updated and superseded by the Equality Act of 2010.

  1. The regulations protect employees and other workers (partners, agency staff, etc) from discrimination, harassment and any other unfair treatment (for example relating to recruitment, training, pay, promotion, retirement and pensions) on the basis of age.
  2. Age means any age - not just older people - this includes young people.
  3. People protected by these regulations include:
    • Current employees and workers
    • Job applicants
    • Vocational trainees
    • Vocational training applicants
    • Under certain circumstances people for whom the working relationship has ended (e.g., in giving references).
  4. The regulations apply to:
    • Employers of all types
    • Private and public sector vocational training providers
    • Trade unions
    • Employer organisations
    • Trustees and managers of occupational pension schemes
    • Employees and workers themselves (for example extending to liability for pay compensation in cases of harassment against someone).
  5. The regulations make it unlawful on the grounds of age , (unless it can 'objectively justified' - see point 7 below), specifically to:
    • Discriminate directly against anyone (workers and employees as defined above)
    • Discriminate indirectly against anyone ('indirectly' covers a very wide range of possibilities, including unintentional ones, such as processes or policies which disadvantage a person because of their age)
    • Harass or bully anyone, or expose them to harassment or bullying by others, ( harassment as perceived and experienced by the victim ; the perpetrator's views and intentions are not the issue)
    • Victimise anyone complaining or giving evidence, or intending action in relation to an age discrimination complaint.
  6. The implications of the legislation particularly affect and extend to:
    • Recruitment and interviewing and selection
    • Training
    • Pay and benefits
    • Performance appraisals
    • Promotion
    • Work-related social activities
    • Dismissal
    • Redundancy
    • Retirement
    • Pensions
    • The general conduct of everyone in work, and their awareness of their responsibilities within the regulations
    • Therefore all documentation, systems and processes used in the above.
  7. The regulations are not designed to force unreasonable or unsafe changes on people and organisations, and so the rules provide for 'objective justification' to be used where any age discrimination can be proved to be proportionate (appropriate) and legitimate (truly necessary) for the purpose or aim of the organisation. 
  • In such cases, the onus is on the organisation to provide evidence of the 'objective justification', which is capable of withstanding scrutiny at a tribunal. Simply 'saving money' is not generally a legitimate reason for exceptions to the rules. 
  • For discrimination to be lawful the organisation must be able to demonstrate that its actions have been based on proportionate and legitimate reasoning - rather than an arbitrary, unthinking or unfair treatment of a person because of the person's age. Beyond this guideline, absolute interpretation of 'objective justification' is difficult to express in just a few sentences. 
  • Where issues entail such judgements you should seek expert qualified information. ACAS (The Arbitration and Conciliation Advisory Service) is generally a good place to start.
  • Below are some examples of specific implications of age discrimination and equality regulations. Exceptions must be considered and justified via the system of 'objective justification'. The examples below are not an exhaustive list of implications of anti-age discrimination. Employers should follow the ACAS guidelines for checking and planning full compliance.

  • Examples of Specific Implications of Age Discrimination and Equality Regulations 

    • Unfair dismissal and redundancy rights are not subject to an upper age limit. All workers regardless of age must be given the same rights and benefits in these matters.
    • Employers must give employees at least six months' notice of their retirement date.
    • Employees can request working beyond compulsory retirement, which employers will have a 'duty to consider'. There is no compulsion on employers to extend employment beyond the statutory retirement date (based on 65 years of age), provided a lawful retirement procedure has been properly followed. Employees have the right to appeal a refusal by the employer to extend employment beyond an intended retirement date. 
      • Age discrimination law relating to retirement involves some complexity but basically provides for people to be treated fairly and according to proper legitimate policies, rather than the situation which existed before (UK 2006 legislation) whereby a person older than retirement age effectively had no usual rights to a fair dismissal. Now people do, regardless of how old they are.
    • Recruiting or rejecting anyone for a job or vocational training on the basis of age is unlawful. This obviously has implications for advertising, job application forms, short-listing, interviewing, selection, training of interviewers, documentation and record-keeping. Implications also extend to the way you brief and manage agencies which provide any of these recruitment services to you.
    • Failure or refusal to provide training, advancement, an opportunity to anyone on the basis of age - any age - is unlawful.
    • Asking for details of age on application forms and appraisal forms is not in itself unlawful, but doing so obviously increases the potential for age discrimination to take place. 
      • Official advice (ACAS, etc.) is to remove age and date-of-birth questions and sections from documentation used in recruitment, interviewing and assessing people and instead use a separate 'diversity monitoring' form to gather and record age-related information, which is retained by your HR department as part of overall equality and diversity monitoring processes.
    • Job applicants who believe they have been rejected because of their age can make an age discrimination claim to an employment tribunal - it is not necessary to have been employed by the organisation to make a claim against an employer. The same principle applies in the case of applicant rejection by a vocational training provider.
    • When a working relationship has finished, employers and staff of the employer are still liable under the age discrimination legislation for any behaviour that could be deemed discrimination, harassment, or victimization against the departed worker. 
      • For example, in giving a reference which includes any comment which mentions the person's age (directly or indirectly) in an unhelpful way - any age - is unlawful. Such action would be unlawful even though the person is no longer an employee.
    • Employers have a duty to train all staff in the Age Discrimination legislation and its implications, both from the perspective of people's rights, and especially their responsibilities.
    • Partners in businesses (for example legal firms and consultancies formed partnerships rather than as limited companies) are covered by the regulations.
    • Employers should use 'age monitoring', (which is also the alternative instead of visible age and date-of-birth details on recruitment and assessment documents). 
      • Age monitoring is the statistical analysis of workers' ages (by HR department or equivalent), in terms of recruitment, promotion, training, discipline, leavers, etc. This is most easily done in age bands, for example: 16-21/22-30/31-40/51-60/60-65/60+ although you can use any banding system that suits you. 
      • Age monitoring helps to identify potential problems and to highlight and provide evidence for 'objective justification' (exceptions) where discrimination can be justified. It is sensible to incorporate age monitoring within existing equality and diversity monitoring system, assuming you have one. If not, now might be a good time to introduce one.
    • Employers should have clear transparent policies stating how unlawful discrimination is avoided in the main areas of people management and development, notably recruitment, training, promotions, discipline and retirement.

    Is Age Discrimination Legislation enough?

    Note. Age discrimination legislation does not make it impossible to treat people differently because of age-related issues at work , instead, the law makes it unlawful to treat people unfairly purely and arbitrarily because of their age.

    • This is perhaps best illustrated by the example of an employer which (pre-legislation) could lawfully refuse to hire someone purely on the basis of age, or compulsorily retire someone purely on the basis of age; these actions are no longer likely to be lawful. 
    • Refusal to hire, and compulsory retirement, must now (post-legislation) be based on reasons of (legitimate, proportionate and so legal) organisational policy and/or the candidate's or employee's competence/capability.

    These principles of equality are consistent with running an ethical organisation. An ethical organisation (amongst other things) does not discriminate directly or indirectly against anyone on grounds of age, gender, race, religion, disability, etc.

    As with any matters of employment law, it's important to understand the details and to seek appropriately qualified advice to help you interpret the issues for your own situation. ACAS is especially well-positioned and able to provide this (UK) support.

    Benefits of Diversity

    Age Diversity represents the range and mixture of ages in workforces and organisations, and the challenges and opportunities that employers face in managing it.

    1. Having equality philosophy and policy in place - and fully understood by all staff - is consistent with ethical business, and good modern ethical organisations.
    2. Equality means treating all people fairly: valuing everyone for their strengths, capabilities, experience and potential.
    3. When an organisation values its people in this way, people respond positively, with loyalty, commitment and enthusiasm.

    Some organisations regard age diversity, and other aspects of equality, as mostly a difficulty. Where diversity is not embraced by an organisation's leadership, this tends to mean that people are not treated fairly and equally, and then quite understandably they lose faith in the employer. 

    • Poor employers then blame their people for a lack of motivation, but actually the fault lies with the organisation and its leadership, not the staff.
    • Good organisations regard diversity and equality as huge opportunities to improve and develop organisational quality and performance.
    • Treating people fairly, and valuing everyone, promotes cohesion, unity and loyalty in a workforce.

    For an additional and useful perspective on age see Erik Erikson's Psychosocial Theory.