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 on the basis of age.
Working into your 60s, 70s and beyond is no longer a rarity, and for many it’s a financial necessity. The past 15 years has seen a 60% rise in the number of people age 50-64 in the workplace, a third of the workforce is expected to be over 50 by 2020 and in the last 10 years, the percentage of employed 70-74 year olds has virtually doubled.
Despite the prevalence of older workers, many people age 50 and over feel unfavourably discriminated against because of their age. With this in mind, Partner and employment law specialist James Bell answers a few common questions about age discrimination.
Does the law prohibit age discrimination?
The legislation replaced an existing regulation, which applies to everyone including employees, job applicants, trainees, office holders (such as directors), contract workers and self-employed, and 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 and victimisation.
Direct discrimination is exactly what it says. For instance, being told directly that you are too old for something, such as a raise, a promotion or 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, the fourth type, covers things like offensive jokes or comments about age or age-related derogatory remarks about abilities. Lastly is victimisation, which, in general terms, 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 these types of age discrimination for employers?
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 appropriate and necessary – it may be considered justified and therefore allowable. An employer may have to prove this in court and may have to show that there are no other, less discriminatory options.
I’m under pressure to retire but I don’t want to. What are my rights?
Following abolition of the default retirement age 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.
I’ve slowed down a little as I’ve got older. Is this grounds 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.
Can my age prevent me 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 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 effectively disadvantages anyone who left school before they were introduced and therefore discriminates. In this case, the advertisement 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.