AGE DISCRIMINATION: THE FACTS
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.