How to Identify Age Discrimination in the Workplace

Your company may be made up of employees of all ages. When this is the case for your business, it's your responsibility to ensure everyone is always treated fairly.

Discrimination of all forms is illegal in the UK. Allowing it to take place in your business can lead to claims being raised to an employment tribunal. This may lead to heavy compensation to pay, as well as reputational damage.

In this guide, we'll discuss what age discrimination at work is, its different forms, and how you can prevent it in your company.

What is age discrimination?

Age discrimination is when someone is treated differently because of a person's age or because they're part of a particular age group.

None of your employees should experience discrimination whilst at work, so it's important you understand what it is.

Age discrimination in the workplace is when an employer decides to treat an employee or group of employees differently due to age grounds. This is a serious issue that you should handle as a matter of urgency.

To ensure you're managing the issue of age discrimination correctly, it's important to become familiar with how your employees are legally protected.

How are employees protected against age discrimination at work?

Employees are protected from discrimination of all forms under the Equality Act 2010.

Under the Act, it’s unlawful for any employee to be treated differently due to their age or being part of a certain age group. (This protection also applies to candidates during a recruitment process).

Age is one of the nine protected characteristics. The others are:

• Disability.
• Gender reassignment.
• Marriage and civil partnership.
• Pregnancy and maternity.
• Race.
• Religion or belief.
• Sex.
• Sexual orientation.

Employees are protected from being forced into retirement. Following the default retirement age being scrapped, you cannot force someone to retire unless it’s for very specific circumstances. Like, if a job had a certain age limit due to health and safety law (like the fire service).

Different types of age discrimination at work

Age discrimination can take many forms. So as an employer, it's vital you become familiar with them. Let's discuss each form in more detail:

Direct age discrimination

Direct age discrimination is when an employee is treated differently by their employer purely because of their age or being part of a certain age group.

This type of discriminative behaviour can happen once or occur repeatedly over a period. Direct discrimination is known as the most obvious form of discrimination and must be avoided at all times.

Indirect age discrimination

Indirect discrimination is when a provision, criterion, or practice (PCP) applied to all staff, but it puts someone of a certain age or age group at a disadvantage.

Your intention may not have been to indirectly discriminate against anyone. But if you don't take care, you could be doing so. It's important to consult all employees about policy changes within your company (but this may depend on what the changes are).

Harassment

Harassment is when an employee receives unwanted conduct regarding their age. This can be undertaken in many forms; such as abuse, comments, or bullying. They all create or lead to an offensive environment to work in.

This behaviour can force employees to feel humiliated, degraded, and intimidated.

Victimisation

This form of discrimination is when someone is treated unfairly or differently because they have made a complaint of discriminatory behaviour or harassment.

Victimisation can also be aimed at an employee who has supported their friend or colleague in making a complaint. No-one should be treated differently simply because they're supporting a friend.

Examples of age discrimination at work

As an employer, it's crucial you manage discrimination correctly. To do so, it's important you become familiar with common examples.

Being aware of all the ways you could be discriminating against an employee will help you create a workforce for all ages and backgrounds.

Let's discuss each form in more detail:

Direct discrimination

There are many ways that you could directly discriminate against an employee due to their age, such as:

• Overlooking older employees for promotions when they're more than qualified.
• Refusing to invite someone for an interview because they're older.

The above examples may seem extreme to many business owners; however, they do take place. It's important they never happen in your company, and if they do you must stop it.

Indirect discrimination

There are numerous ways that you could indirectly discriminate against someone due to their age. Such as:

• Having a recruitment policy where all applicants have to complete a physical test. Older people are less likely to pass the test compared to younger applicants.
• Not discussing career aspirations with older employees because you assume it’s not applicable to them (due to their older age).

Harassment

Harassment can take many forms, but below are two common examples found in many workplaces:

• A younger employee calling an older worker ‘Grandad’ or ‘old-timer’.
• An older employee saying to a younger person "they're still wet behind the ears".

Although these comments may not seem too offensive to some people, to others they may be upsetting. It's important your employees are aware of how their comments can make others feel.

Victimisation

It's important you become familiar with examples of age victimisation that may take place in your company. For example:

• Not offering training opportunities to someone who supported a colleague with making an age discrimination claim.
• Not offering someone a promotion because they supported a colleague who made a claim of age discrimination.

How to spot age discrimination in your company

When running a business, it's key that you know what to look out for when it comes to age discrimination. By doing so, it can ensure your employees won’t be discriminated against due to their age.

The following are signs of age discrimination that you need to look out for:

• Training opportunities and progression is automatically offered to younger employees as well as older ones.
• Avoid blaming problems on employees of a certain age (whether their younger or older).
• Zero-tolerance for derogatory language being made to younger or older workers.

Can you be taken to an employment tribunal over age discrimination?

Yes, you can be taken to an employment tribunal for age discrimination claims.

If an employee resigns due to discrimination, a claim of constructive dismissal may be raised. And if an employee feels they've been dismissed because of their age, this could lead to a claim of unfair dismissal.

Is age discrimination be objectively justified?

Yes, sometimes age discrimination can be objectively justified in certain circumstances. The employer must also be able to show their actions have a ‘proportionate means of achieving a legitimate aim’.

For example, employees over a certain age cannot work as emergency workers due to health and safety reasons. It's important to remember that sometimes you can justify discrimination, but harassment or victimisation can't be justified.

How to prevent age discrimination

As an employer, it's important you do all you can to prevent age-related discrimination in your company. And there are many things you can be doing to ensure it doesn't happen.

Let's discuss them in more detail:

Review your job adverts

Whenever you're creating a job advert, you should avoid age limits or words that could suggest you're looking for applicants from certain age groups.

For example, avoid using ‘recent graduates’ as this suggests you’re only looking for younger applicants. This form of language could make older workers feel like they can't apply for the role.

Encourage people from disadvantaged groups to apply

Known as positive action, this is when an employer encourages people from disadvantaged groups to apply for vacancies. For example, you can start a recruitment drive that is aimed at hiring more older people for your company.

It's important to remember that this isn't the same as positive discrimination which isn't allowed under UK employment law. An example of positive discrimination is an employer only accepting job applicants from older people even though a younger person could perform well in the role.

If you're looking to bring positive action into your company, you should always remember to offer the role to the best candidate - no matter what their age is.

Create clear disciplinary policies

Another way to help prevent age discrimination is to ensure you create clear and concise disciplinary policies (these should be included within employee handbooks).

Polices should cover how you plan to investigate an age discrimination claim and what disciplinary action may follow. All employees should know what process to follow if they experience age discrimination whilst at work.

Ensure decision-making panels include wide group of ages

You should ensure your decision-making panels are made up of people from a wide group of ages.

This encourages new ideas to be bounced around, with older employees sharing from their past experiences.

Not only will it help new ideas be formed, but it will show your employees that you value staff of all ages. This is vitally important for the working relationship between you and your staff.

Train management and senior staff

Another good way for you to prevent discrimination of all forms in your business is to ensure you train your senior staff correctly.

Providing training to your staff will help them become aware of how age discrimination can affect someone and make them feel. It's also important to include how discrimination claims should be dealt with.

Can you ask job applicants about their health during hiring?

No, you shouldn't ask job applicants about their health during the hiring process - except during certain circumstances like:

• If you want to monitor the diversity amongst applicants.
• If you need to know if the applicant has any health or disability related requirements.
• If you have provided them with a job offer.
• If you want to ask whether they require reasonable adjustments to do their job.

Get expert advice from Peninsula on avoiding age discrimination

As an employer, your company may be made up of employees of all ages. And it's on you to make sure everyone is treated fairly.

Discrimination of all forms is illegal in the UK; allowing it to take place in your business can lead to claims being raised against you to an employment tribunal. This may lead to heavy compensation to pay, as well as reputational damage.

Peninsula offers you expert 24/7 HR advice and support, helping you create an inclusive and diverse workforce. Want to find out more? Contact us on 0800 028 2420 and book a free consultation with an HR consultant today.