Age discrimination


People often find it easy to spot discrimination in the workplace when it is regarding race, religion or gender, but how many would be able to spot age discrimination?

Age discrimination involves an employer treating you badly or placing you at a disadvantage because of your age. The law surrounding age discrimination covers discrimination relating to employment, adult education and training. The main legislation is the Equality Act 2010. There are four types of discrimination that can occur relating to age.

It is important to note that age discrimination may also include conduct by your employer which is biased against you because of the age of someone you associate with (known as discrimination by association), or because of the age your employer perceives to be.  Also note that, as with other forms of discrimination, it is entirely possible for there to be discrimination in the recruitment process itself, whether or not the complainant is offered a job or not, so employers need to have appropriate policies and procedures, and to adhere to these, in terms of having an objective and unbiased recruitment process.

Type 1: Direct Discrimination

This involves treating someone less positively because of their age. This treatment by your employer could include refusing to hire you on the basis of your age, refusing to promote you or dismissing you unfairly.

Type 2: Indirect Discrimination

This involves using policies, practices or procedures which, whilst applying to all employees, especially disadvantage people of a certain age bracket. An example of indirect discrimination could be an employer requiring a job candidate to have worked in a particular position for fifteen years. This would disadvantage younger people that wanted to apply for the position.

Type 3: Harassment

Harassment is a form of direct discrimination. If you feel embarrassed, humiliated, offended, intimidated or worthless because of unwanted behaviour in the workplace (that relates to your age), this is deemed harassment. This could include minor conduct like joke-telling, which refers to either your age or the age of someone you associate with, but also includes bullying and name calling. It does not matter whether the person who directed this conduct towards you held the intention to cause these negative feelings. This is because what one person considers a ‘joke’ another person could find hurtful and offensive. If it is a colleague, rather than your employer, who is harassing you, your employer can still be held responsible.

Type 4: Victimisation

Victimisation can arise in situations where you have made a complaint about discrimination, or where you have given evidence for someone else who has made a complaint, and as a result, you are treated unfairly.

Your Right Not to be Forced to Retire

You have the right not to be forced to retire because you have reached a certain age. Additionally, you have the right to request to continue working even if your employer has suggested an earlier retirement date.

When Can Age Discrimination be Justified?

Your employer may be able to treat you differently to other employees because of your age if they can objectively justify their treatment. In order to do this, your employer would need to demonstrate their reason for their treatment towards you, which needs to be based on a practical business reason. The justification cannot be solely because of your age. If they can show that their treatment/conduct was appropriate, then this will not amount to age discrimination.

Whilst it is possible for an employer to justify discrimination, it is not possible, under any circumstances, to justify harassment or victimisation.

What to do if You Believe You Have Been Subjected to Age Discrimination

The first step would be to try voicing your feelings about the particular treatment, either to the person who is doing it or your employer. You should put this in writing and ensure you keep a copy. Your employer is legally required to try and prevent workplace discrimination.

Additionally, it is useful if you keep a recollection of the discriminative treatment against you. This could include a diary. Make sure that you note dates, times, locations, words said/actions carried out, and if there were any witnesses.

If these steps have failed, the next step is to raise a formal grievance or to use what is known as the questionnaire procedure. This should take the form of a written document, sent to your employer. They should have a formal procedure for this, but if not, then you should follow the Acas Code of Practice on disciplinary and grievance procedures.

If you feel you have been dismissed/forced to retire because of your age, you may be able to ask an employment tribunal to decide whether you have been unfairly dismissed.

If you believe you have been discriminated against because of your age, whether this has taken the form of direct/indirect discrimination, harassment or bullying, it may be possible to make a claim to an employment tribunal.

Disciplinary hearings

Disciplinary Hearings

Some times in the workplace an employee is accused of misconduct or non-compliance with company regulations. In such circumstances a disciplinary hearing is an option for the employer. This also helps the company to set an example that all employees are dealt with justly and fairly and at the same time reinforce its rules and regulations.


Procedure is equally as important as substance in employment law, and an employer who is considering disciplinary process against an employee must be very careful to follow good procedure and ti comply with it’s own contract in investigating any issues objectively and fairly before calling a disciplinary hearing. It must be clear what the allegation is and that there is evidence to support the same, be it witnesses or another form such as documents and statements.  A full and complete investigation is therefore necessary to consider whether there is misconduct. Pending any disciplinary hearing if it is necessary to suspend the employee, the employee should not be penalised and should be paid  salary. Should the findings of the investigation indicate that there has been misconduct or possibly even gross misconduct, a disciplinary hearing would be held. The employee would have to be notified in writing giving them sufficient time to prepare for the hearing and also be informed of their right to bring a colleague to the hearing.

Misconduct disciplinary hearings

There are two basic classes of misconduct, which may give reason to disciplinary process. Misconduct is one type of behavior which can result in disciplinary process but there are others such as capability concerns.

As regards misconduct, firstly, the employee may have committed a serious violation (gross misconduct) leading to straightforward dismissal. In such circumstances notice may not be given or payment would be given in lieu. Secondly, if the misconduct is minor, following several warnings, the employee can be dismissed with notice.

The Hearing

The hearing should be recorded in writing and copies are to be provided to the employee if requested. Following introductions, the employer will submit the allegation with supporting evidence presenting their case in a clear manner. The employee can subsequently respond, ask questions and provide any relevant mitigating circumstances. The hearing would then be adjourned so that the employer can revise evidence. On reconvening the hearing, the employer will state their verdict with an explanation and in their summary also inform the employee of their right of appeal.


Penalties are subject to the employees’ contract of employment and also general employment law principles which require an employer to act within “ a range of reasonable responses”. However, the following should also be considered; the actual offence and whether there are existing examples of similar cases and the penalties given in those instances; whether the company regulations give guidance on handling matters; the employee’s work history and character history; any extenuating circumstances; and finally whether the penalty recommended is reasonable considering the merits of the case. Any action taken against the employee, or arrangement reached with the employee should be duly recorded and signed by both employee and employer for future reference should misconduct become an issue again. If an arrangement has been reached or a warning given, the employee would have to be told the consequences of future misconduct. If the employee remains in employment, they would be observed and encouraged to perform well and improve with regular appraisals to support them


An employee should have the opportunity to appeal against a formal disciplinary sanction. In an organization which has perhaps more than 10 employees, the appeal ought to be chaired by a neutral person who was not involved in the investigation, ideally a person further along on the hierarchy of management in the company. The employee may appeal against the decision within a given time period provided there is new evidence that has been brought to light or there was potentially a procedural error in the initial hearing, which could therefore potentially change the employer’s verdict. The appeal follows a similar procedure to the hearing. During the appeal the chairperson would have to ensure that the initial hearing was correctly conducted and evidence appropriately given. After presentation of new evidence, the employer will adjourn and subsequently inform the employee of the meeting in writing as soon as practicable. The employee should note that this may be the final decision and there may be no further rights to appeal.

Redundancy law


When employers need to reduce their workforce (whether this is due to them needing to cut costs, or because a particular job becomes unnecessary), they may make various employees redundant. But what do you need to know if this happens to you?

Step 1: Reasons for Making You Redundant

Your employer must have a genuine reason for making you redundant. If they are making individual people redundant (this is where redundancy affects less than 20 people in the company), then they must use fair criteria when selecting who will be made redundant. This could include factors such as skills and competence levels, your disciplinary records or your experience. However, it is important to note that it is illegal for employers to base their decision on unfair selection criteria, such as race, gender, age, religion, marital status, trade union membership or whether you have a disability.

Step 2: Your Right to Consultation

Before making you redundant, your employer should always consult with you first. The consultation process should include discussions covering ideas on how to reduce the number of people being made redundant, but should also focus on giving you plenty of notice that you may be made redundant. It is important that your employer explain to you why the redundancies are happening and how many people will be affected. During this process you should contribute to the discussions. If your employer is making fewer than 100 people redundant, they should begin consultations at least 30 days before the first person is due to be dismissed. If 100 or more employees are being dismissed, the consultation process should take place over a 90 day period minimum. Failure by your employer to comply with this process could give you grounds to apply to an employment tribunal for a protective award. This may mean your employer will have to pay you the equivalent of up to 90 days wages.

Step 3: Redundancy Pay

If you have worked for your employer for at least two years, you are entitled by law to receive statutory redundancy pay. This figure will be based on your weekly pay, age and continuous employment with your employer. This should be paid automatically to you. If they have failed to do this, you should ask for your payment in writing. If they still refuse to pay then you could make an appeal to an employment tribunal. Please note that you are not entitled to this payment if your employer has offered you suitable alternative work which you have refused without good reason.

You need to also check your employment contract/handbook, as some companies may make their own provisions for redundancy.

How to Calculate Your Redundancy Pay

The simplest way to calculate your statutory redundancy entitlement is online. This can be done at

Step 4: Redundancy Notice

As well as receiving your statutory redundancy pay, your employer must also pay you during your notice period.  During this period, your employer must allow you to take time off (if you so desire), to look for another job. If you choose to do this, you will still be entitled to two fifths of your usual pay.

If you have had your job for more than two years then for each year that you have worked in that company you will be entitled to a week’s notice pay. If you have worked for your employer for less than two years (but for at least a month), then you are entitled to at least one week’s notice pay.

Do bear in mind that if you take industrial action during your notice period, and fail to work the extra days you took off, or if you accept and start another job during that notice period, your statutory redundancy pay could be reduced.

Step 5: Redundancy Appeals

If you wish to appeal against your employer’s decision to make you redundant, it is worth seeking advice from an employment lawyer. Your employer should have a procedure in place to enable you to carry out this process. Informing your employer that you wish to appeal against their decision should be done in writing, and your employer should give you a deadline for when this should be carried out.

Failure to Comply with the Correct Redundancy Rules

If your employer has failed to comply with the correct redundancy procedure, it may be possible to make an employment tribunal claim against them.

Gross misconduct

Gross misconduct

What is gross misconduct ?

Gross misconduct occurs when an employee behaves in a way which can be classified as fundamentally destroying the employment relationship. This is largely a common sense issue as to what sort of behavior would so that, but reference should also be made to any written contract of employment which will be likely to give examples of what might constitute gross misconduct, typically including :-

  • dishonesty,
  • theft or fraud;
  • malicious damage;
  • fighting;
  • serious incapability through alcohol or illegal drugs;
  • actions which endanger employees’ safety;
  • falsification or unauthorised removal of company records or property;
  • a serious act of insubordination

Every company might adopt its own list of behaviour which constitutes gross misconduct. It is advisable that the employer makes clear what amounts to gross misconduct at the start of employment. This can either be done by writing it into an employment contract with every individual employee or by making it generally known to the staff (for example by putting disciplinary procedure in the staff handbook).


If an act of gross misconduct occurs the employer can dismiss the employee without a notice or any payment in lieu (instead) of a notice. The act of gross misconduct can be a one off occurrence and does not have to be repeated in order for the employer to dismiss an employee. The employer will have to be careful to have :-

  • Investigated the allegations of gross misconduct
  • Complied with employment law procedure and it’s own procedures in the contract of employment

In many cases employers get it right in terms of a common sense decision as to what would amount to gross misconduct, but miss out or make mistakes with fair procedures. A finding of unfair dismissal is possible for procedural unfairness just as much as the underlying reason to dismiss and many employers get caught out by this, particularly if the employee has behaved in a shocking way and the employer simply reacts on the spot.

What claims can a dismissed employee have?

If an employee is dismissed on a basis of a gross misconduct he or she might be able to bring a claim to the Employment Tribunal for the following, and in many cases, claims are overlapping :-

1.            Unfair dismissal

To bring the claim an employee must be employed by the employer who dismissed him for gross misconduct for at least one year (in most circumstances).

2.            Wrongful dismissal

The claim can be brought for a breach of contract. The length of employment is irrelevant for the wrongful dismissal claim. The employee can chose to bring a claim in the civil court because damages for a breach of contract or wrongful dismissal claim are limited to £25,000 in the Employment Tribunal.

3.            Discrimination (on grounds of race, sex, religious believes or disability)

The length of employment is irrelevant for the discrimination claim. i.e there is no minimum qualifying period.

More content about gross misconduct on another Darlingtons website.

For dismissals generally this page on our main site may also be useful.

Fixed term contracts

Fixed Term Contracts

What are Fixed Term Contracts?

A fixed term contract is when an employer takes on an employee for a set period of time only. However, if an employee has been employed under a fixed term contract by the same employer for a period of four years or more the employee is then entitled to permanent employment status within that company. Continue reading

Mediation in employment disputes

Alternative Dispute Resolution is used throughout civil litigation proceedings, as well as Employment Tribunal proceedings. There are a number of advantages for the parties to consider Alternative Dispute Resolution, most notably the timing and cost savings.

With an employment law dispute where a tribunal case is started the parties to the dispute will automatically be contacted by ACAS, who have a statutory duty to contact the parties to try and mediate. In many employment cases, the parties, and sometimes their advisors, whilst being polite in response to contact from ACAS, do not take up the offer of help. This is often a missed opportunity particularly as :- Continue reading


This is the specialist employment law site for Darlingtons solicitors. We are a well known and growing law firm with offices in North London and Central London.

Our team covers a full range of legal services and advice for both business and individuals. Our head of employment law, Partner Ben Jones, advises both employers and employees on the full range of both contentious and non-contentious employment law issues. Ben is an experienced employment lawyer who has dealt with many Employment Tribunal cases, and his focus is on practicality and an understanding that with employment disputes, in reality both sides often end up losing if a case reaches tribunal.

This site will offer guides to the main issues and developments in employment law together with views, debates, legal updates and relevant cases. Topics included will be, without limitation :-

  • employment contracts
  • self employed or employed ?
  • Staff handbooks, policies and procedures
  • discrimination law
  • employment tribunals
  • tactics for employment law disputes
  • fixed term employees
  • employment of senior staff
  • disciplining of employees
  • sickness absence
  • maternity  paternity rights
  • restrictive covenants
  • compromise agreements

ET1 form

ET 1 Form

What it is an ET 1 Form?

An ET 1 Form is used by an employee after his or her employment has been terminated to file a claim in the Employment Tribunal. It starts the tribunal proceedings in employment-related disputes.

How to present the form?

You need to complete an ET 1 Form and present it to the local office of the tribunal (which office is local depends where your former place of work was located). The forms can be downloaded from the tribunals’ website and delivered in person, by post (it is the time of its arrival at the office not the time of posting it that counts for the time limit), fax or email. Continue reading

Implied term in employment contracts

Implied terms of employment contract

What are the implied terms?

Implied terms are terms which may not be written in the employment contract but are either understood by both the employer and the employee to exist or which are implied by law.

Many employment contracts will cover the obvious implied terms in any event but it is still worthwhile being aware of how an Employment Tribunal or court may look at a situation. It is also important to recognise that the terms of an employment contract may be interfered with by a Tribunal or court to imply that certain terms of that contract are unfair or that the day to day reality was different from the contract. This is another way in which implied terms impacts on employment law.

The most well known and important implied term in every contract of employment is that of mutual trust and confidence between employer and employee. Without this an employment relationship cannot work and this is a matter of common sense really. If an employee steals from an employer this of course must destroy trust and confidence just as if an employer fails to pay the employee. Continue reading

Redundancy Rights

It is important that employers and employees seek advice before undertaking a redundancy process. There are various redundancy rights and obligations imposed upon employers prior to undertaking a redundancy.

They will need to comply with provisions in the Employment Rights 1996 which state that, amongst other things, an employer needs to undertake the following:

  • Identify an appropriate pool for selection;
  • Consult with individuals in the pool;
  • Apply objective selection criteria;
  • Consider suitable alternatives to redundancy.

In addition, if there are 20 or more employees being made redundant over a period of 90 days or less, an employer has a duty to consider the obligations under the Trade Union and Labour relations (Consolidation) Acts 1992. Advice should be sought specifically in this regard.
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