Before the Employment Equality (Age) Regulations came into force in 2006, there was no specific protection for employees from discrimination on grounds of age. The law on age discrimination is now set out in the Equality Act 2010 (the Act) which provides for protection from discrimination in the workplace on the grounds of a number of protected characteristics including disability, race, sex, age, sexual orientation and religion or belief.
What is the definition of age?
Discrimination under the Act may arise where someone is treated less favourably because of their particular age group (such as the “over-fifties”) or their particular age (such as 21 year-olds) – so discrimination can arise against an individual of any age, whether young or old.
Age discrimination in the workplace
The law prohibiting age discrimination in the workplace applies to all stages of the employment relationship including recruitment, terms and conditions of employment, promotions, transfers, training and dismissals – and there are a number of ways under the Act in which discrimination may occur.
These include where an employer or prospective employer has directly discriminated against an employee or job applicant by treating them less favourably because of their age without objective justification – (direct discrimination on grounds of age is the only form of direct discrimination which is capable of justification under the Act) – or has discriminated indirectly against them by applying a provision, criterion or practice (such as a requirement to have a certain number of years’ experience or to comply with a particular level of physical fitness) which disadvantages job applicants or employees of their particular age or age group without objective justification.
Age discrimination may be permitted in certain limited circumstances. For example, an employer may rely on the occupational requirement exception where only people of a particular age group can do a particular job because of the nature of the job in question. By way of example, in a case brought before the European Court of Justice by a German court in 2010, a requirement that a firefighter be no more than 30 years old was held to be an occupational requirement because few people over 45 have the necessary physical capabilities for the job and it was necessary for firefighters to spend a sufficient period in the role before transferring to less demanding work. Each case, however, would turn on its facts.
In addition there are a number of exceptions in the Act which apply to discrimination on grounds of age only, such as an exception which allows employers to provide benefits which reward long service in certain circumstances.
When the age discrimination laws were first introduced, it was also lawful for an employer to dismiss by reason of retirement those employees who had reached the default retirement age of 65. However, the default retirement age was abolished in 2011 so that a retirement dismissal will now amount to direct age discrimination unless the employer’s compulsory retirement age can be objectively justified.
Where a job applicant or employee has been discriminated against on grounds of their age, they must bring their complaint to the employment tribunal within three months of the discriminatory act. If the employer is found liable, they may be awarded compensation without limit, which will be calculated according to the financial loss suffered as a result of the discrimination. Compensation may also cover non-financial losses, such as an award for injury to feelings.