Workplace ageism: what are your rights?
Everyone has the right to be treated fairly at work, and there are laws to protect you against discrimination based on age.
Working into your 60s, 70s and beyond is no longer a rarity, and for many it’s a financial necessity. In fact, 60% of 60-64-year-olds are now in work.
Despite the prevalence of older workers, many feel unfairly discriminated against because of their age. Here, our employment lawyers answer some frequently asked questions about age discrimination.
Is age discrimination illegal?
Under the Equality Act 2010, it is unlawful to discriminate in the workplace because of age.
The legislation applies to everyone, including:
- Employees
- Job applicants
- Trainees
- Office holders (such as directors)
- Contract workers
- Self-employed workers
It spans all aspects and areas, from recruitment and employment terms and conditions to training, promotions, transfers and dismissals.
What counts as age discrimination?
Age discrimination is when you are disadvantaged or treated less favourably because of your age. The Equality Act recognises that it can take different forms and identifies four main types of age discrimination:
- Direct discrimination
- Indirect discrimination
- Harassment
- Victimisation
Direct discrimination is exactly what it says. For instance, being told directly that you are too old for something, such as being given a promotion or being placed on a training course.
Indirect discrimination is when a workplace or employment policy or practice impacts negatively on an older person. An example is offering a training course to recent graduates. As older people are unlikely to be recent graduates, they are excluded from being able to take up the training, which could constitute discrimination.
Harassment covers things like offensive jokes or comments about age or age-related derogatory remarks about abilities.
Victimisation relates to less favourable treatment of someone who has made or supported someone who has made an age discrimination complaint.
Are there any exceptions to age discrimination?
It may be lawful for an employer to discriminate if there is a very good reason for doing so. Known as ‘objective justification’, if discrimination is shown to be a proportionate means to a legitimate end, in other words, if it is appropriate and necessary, it may be considered justified and therefore allowable.
An employer may have to prove this in court and show that there are no other, less discriminatory options. An example may be where a particular age may genuinely be necessary for a particular job. The requirement must relate to the specific role and satisfy the relevant justification test. Employers can also provide certain additional benefits based on length of service which are not generally considered discriminatory.
I’m under pressure to retire, but I don’t want to. What are my rights?
Following the abolition of the Default Retirement Age (DRA) in 2011, employers can no longer make it compulsory for an employee to retire or dismiss someone because they have reached ‘retirement age’, unless they can justify it objectively.
Provided you are meeting the requirements of your job, you should be able to continue working as long as you like. You no longer have to put in a request to work beyond age 65, and with no default retirement age anymore, if and when you retire is largely a matter of choice.
There are also specific occupations with statutory retirement ages, such as certain roles in the Police and fire service, but this depends on the circumstances.
I’ve slowed down a little as I’ve got older. Is this a ground for dismissal?
As long as you meet the requirements of the job, no, it isn’t. If you are carrying out your role as required, the fact that you do so a little slower than previously shouldn’t be an issue.
If you feel no longer capable of doing the job, then your employer could potentially use the fair reason of ‘capability’ to dismiss you, but they would have to follow a fair and proper process if they genuinely feel you are no longer capable of undertaking the role you were employed to do.
Can my age prevent me from switching jobs?
By rights, it shouldn’t be a barrier. Discrimination on the grounds of age is against the law across all aspects of employment, including job advertisements and recruitment processes, unless there is an objective justification for doing so. A company cannot choose not to interview you or decide not to employ you because of your age, and cannot offer unfavourable age-related employment terms and conditions.
The job I want to apply for requires GCSEs, but these qualifications weren’t around when I left school. Is this discrimination?
A recruitment advertisement asking for GCSEs may indirectly disadvantage anyone who left school before they were introduced and could therefore potentially discriminate against older people. In this case, the advert should state ‘GCSEs or equivalent’, and an employer is obliged to accept the equivalent.
Is age-related harassment at work discriminatory?
Age-related jokes and remarks that are offensive or belittling can constitute harassment. This is a form of discrimination, and your employer is required to manage it. Harassment can be directed at individuals, such as derogatory comments about age-related features like wrinkles, or can be part of the corporate culture, such as ageist jokes being routinely and freely told.
Contact our employment lawyers
To speak to an employment solicitor in Bristol or South Gloucestershire for advice on workplace discrimination, call us on 0117 325 2929 or complete our online enquiry form.
