This section of the site is about age discrimination
and how and where it may affect you.
Unlawful age discrimination happens when someone is treated unfavourably
because of their age, without justification, or is harassed or
victimised because of their age.
Find out more about your legal rights and what to do if you are being
discriminated against on this page:
Does age discrimination apply to me?
Age discrimination law currently
applies in employment, vocational training, further education and higher
education, where you have been treated less favourably on the basis of your age,
without justification. This may be because you are considered too young or too
old.
Age discrimination law does not currently apply to goods
and services, though human rights law may give some protection in these areas.
Legally, the test for many potential cases of age
discrimination is whether the discrimination can be said to be ‘justified’.
Unlike most other types of discrimination, justification can be used lawfully as
a defence for direct age discrimination, as well as indirect age discrimination.
What is age discrimination? There are different types of discrimination, such as direct, indirect,
harassment and victimisation.
The following are examples of the different types of age discrimination:
●An employer refuses to offer a job to a
young candidate, even though the candidate has the skills and
competencies required for it. The employer sees the position as one of
authority and does not feel the young candidate will be respected or
taken seriously because of his age. This is an example of direct
discrimination
●An employer insists that all candidates for
a job have to meet a physical fitness test (that younger candidates can
meet more easily) even though the fitness standard is not required for
the job in question. This is indirect discrimination.
●An employee has been consistently passed
over for promotion, and is not allowed to attend meetings unaccompanied,
because she looks young for her age. Her manager, who is 10 years older
than her, feels that she is too ‘wet behind the ears’ to be given more
responsibility, despite the fact that she has the right qualifications
and five years’ experience in her role. This is an example of direct discrimination.
●A general work culture appears to tolerate
people telling ageist jokes, bullying or name calling. This could count
as harassment on the grounds of age. Harassment is a form of direct discrimination.
●As one of its requirements, a job advert
lists 10 years’ experience in a relevant field, when two or three years’
experience would be adequate for the job. This could be seen as indirect discrimination.
When and where could age discrimination take
place? People can encounter unlawful age discrimination at work and in
education and training.
Working and earning An example of direct age discrimination in employment would be an IT
company with a policy of not recruiting older employees because they
didn’t fit in with the youthful culture of the company. Age
discrimination legislation applies throughout employment: from
recruitment advertising to pension rules. However, there are
circumstances in which age discrimination is allowed, see below.
Vocational learning and training The opportunity to learn and receive training should be open to
all, and educational providers at institutions of further and higher
education are covered by age regulations. An example would be a 16
year-old who applies for a vocational training course to enhance her
promotion opportunities within her company. She is refused entry to the
company’s training scheme on the grounds that she is too young. Under
age regulations her employer would not be allowed to prevent her from
seeking further training because of her age.
However, it can sometimes be justifiable to adopt an age-specific
approach to the delivery of vocational education or training – provided
this is a fair means of achieving a genuine aim. An example of this
would be an educational institution that increases the participation of
a particular age group on a training course to ensure that this section
of the population is integrated into the workforce. This is an example
of positive action, which is discussed further below.
When is age discrimination lawful? In certain circumstances, age discrimination may be lawful, but
there must be an ‘objective justification’ in every case.
Objective justification An objective justification allows an employer to discriminate both
directly and indirectly on the basis of age. They must, however, show
that this discrimination is ‘proportionate’ and contributes to a
‘legitimate’ aim.
Proportionate means that: ●what the employer is doing is actually
achieving its aim ●the discriminatory effect should be
significantly outweighed by the importance and benefits of the
legitimate aim ●the employer should have no reasonable
alternative to the action they are taking. If the legitimate aim can be
achieved by another or less discriminatory means, they must then opt for
that route.
Legitimate means: ●economic factors such as the needs of and
the efficiency of running a business ●the health, welfare and safety of the
individual (including protection of young people or older workers) ●the particular training requirements of the
job.
A legitimate aim must correspond with a legitimate need of the employer.
For example, economic efficiency may be a real aim but saving money
because discrimination is cheaper than non-discrimination is not a
legitimate need. It is not easy to prove objective justification, and
employers have to provide valid evidence if they are challenged.
For example, some employers have policies that link pay and benefits to
an employee’s length of service, such as additional holiday entitlement
for long-serving employees. This may indirectly discriminate against
younger people who are less likely to have been employed for that length
of time, but in most circumstances it is seen as being a proportionate
way of encouraging staff loyalty.
A genuine occupational requirement
In some circumstances, it may be lawful for an employer to treat people
differently if there is a ‘genuine occupational requirement’ for a job
holder to be of a particular age. For example, a younger actress would
be required to play the role of a female teenager in a film.
Positive Action The term ‘positive action’ refers to legal measures that are designed to
counteract the effects of past discrimination and to help abolish
stereotyping. Positive action can be taken to encourage people from
particular age groups to take advantage of opportunities for training or
work experience schemes, or encourage them to apply for particular
employment. It can only be done when a particular group has been
identified as under-represented in a certain area of employment.
Positive action may include things like introducing fair selection
procedures, training programmes or targeting job advertisements at a
particular group.
Positive action is not the same as positive discrimination, and does not
involve treating particular groups more favourably when recruiting.
Employers must make sure that employees are hired or promoted on merit
alone. For example, a company with a young workforce which does not typically
attract applications from older people could advertise a job vacancy by
saying: ‘We would welcome applications from candidates over the age of
45, as this age group is currently under-represented within our
establishment. However, the appointment will be made on merit alone.’
There are a few other exemptions: ●the national minimum wage is
split into three different rates depending on the age of the employee.
Therefore it is within the law for employers to pay their employees
minimum wages of different rates according to their age. ●employment
can depend on age if this is required by existing law. For example, the
position of a bar tender serving alcohol at a club can only be filled by
someone who is over 18 years of age, to comply with licensing
requirements. ●volunteers
generally don’t have protection from discrimination, unless their unpaid
work is part of a training course or they are government-appointed
office holders (like magistrates, for example). ●age
discrimination legislation does not cover the provision of goods and
services, which means that it is lawful for insurance companies and
healthcare providers, for example, to discriminate on the grounds of
age.
What does the law say? Legislation relating to age discrimination includes the following:
The Employment Equality (Age) Regulations 2006:
This legislation effective from October 2006 means that employers can no
longer discriminate against employees on grounds of age.
More information here. (external link)
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