Calling time on age discrimination

A mini-guide to age discrimination at work

Your new rights
What does the new law cover?
The different types of age discrimination
When is age discrimination allowed?
How does the law apply to you?
How do I enforce my rights?
Getting help

The different types of age discrimination

It’s not always easy to spot age discrimination, as there are several kinds, some of which are subtle and may be unintentional.

Discrimination can be direct or indirect. Under the new law, direct and indirect discrimination will be unlawful unless the employer can justify the discrimination, or if an exception applies (see section 4). Direct discrimination means treating someone less favourably because of their age, or because of the age they appear to be.

For example: A company refuses to recruit a person, simply because they’re over 50.

For example: An organisation has a practice of only promoting people under the age of 50 to senior positions.

Indirect discrimination means having a policy or practice that puts people of a certain age group at a disadvantage, compared with other people.

For example: A company restricts recruitment to recent graduates – fewer older people would be able to meet this requirement.

For example: A firm introduces a fitness test, which all employees are required to pass. This could be indirect discrimination if fewer older employees are likely to be able to pass the test. However, it may be possible for the firm to justify this policy. It would have to show that the testing policy was necessary to achieve
health and safety aims, and that there was no less discriminatory way of achieving them.

Harassment

Harassment, or bullying, based on someone’s age is unlawful under the new law. The legal meaning of harassment is:

unwanted conduct, on the grounds of age, which has the purpose or effect of violating a person’s dignity, or creating an intimidating, humiliating or offensive
environment for that person.

It is also unlawful to harass someone on the grounds of the age of someone they associate with. For example: An older worker’s colleagues repeatedly make
jokes about them at work, based on their age, which the person
finds offensive. For example: Someone has a partner who is significantly
younger than them and this is the basis of repeated comments and jokes from colleagues.

This could be unlawful if the person finds it humiliating or offensive.

If you make a complaint of harassment to the employment tribunal (see section 6), it will consider whether it was reasonable for you to be offended in the circumstances. So if someone is seen to have taken offence unreasonably, the tribunal can decide that the behaviour was not unlawful.

Victimisation

This has a very specific meaning under discrimination law. Victimisation means being treated unfairly as a result of making a complaint of age discrimination, or giving evidence when somebody else complains of age discrimination.

For example: An employee is dismissed after complaining that they are not receiving the same training as younger colleagues, because of their age.

For example: A worker is passed over for a promotion that they otherwise would have got, because they made a witness statement supporting a colleague’s complaint of age discrimination.

Unlike direct and indirect discrimination, harassment and victimisation can never
be justified by an employer.

Instructions to discriminate

If an employer instructs an employee to do something which would amount to age
discrimination, it will be unlawful for the employer to treat that employee unfairly because they refuse to carry out the instruction, or because they complain about
the instruction.

For example: An employee involved in a recruitment decision is disciplined for not carrying out the employer’s instruction only to invite people under age 40 for a job interview.