Age Discrimination Solicitors
Our employment law team have considerable experience in advising employees on the law relating to age discrimination, including unfair treatment, harassment and victimisation. In some cases, an obvious comment, which has been witnessed, may lead to a claim. But discrimination is often more subtle and difficult to prove. Therefore, advice should be sought from specialist solicitors in this area.
IBB Solicitor’s employment law team can provide clear, practical guidance on all areas of unlawful discrimination. Our team includes some of the region’s top ranked employment lawyers with decades of experience representing employees of all levels.
What is age discrimination?
The Equality Act 2010 (EqA) prohibits discrimination against individuals in the areas of employment, education, and the provision of goods, facilities and services for a protected characteristic (i.e. age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation).
Whether you are an employee, a worker (engaged under a contract personally to execute work or labour), or a contractor (whose labour is supplied by your employer to another person) you are legally protected. You have rights whatever your length of service and whatever hours you work.
Age is defined in the EqA as a reference to:
- a person who has a particular protected characteristic is a reference to a person of a particular age group.
- persons who share a protected characteristic is a reference to persons of the same age group
- an age group is to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.
Legal protection against age discrimination applies even if some of the work is to be done outside Great Britain but will not apply if the work is to be done wholly outside Great Britain. It applies before, during and after employment.
What is direct age discrimination?
Direct age discrimination) occurs where because of your age, you are treated less favourably than another person who is not the same age or age group as you.
Less favourable treatment means a detriment of a kind that a reasonable person would or might take the view that in all the circumstances you have been disadvantaged. An unjustified sense of grievance cannot amount to a detriment. It is not necessary to demonstrate some physical or economic consequence.
- a man of 64 is passed over for promotion on the basis that his employer believes that he will soon be retiring, albeit the man intended to work until he is 70.
In claiming direct age discrimination, you will need to prove that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.
The appropriate test requires an employment tribunal to consider the reason why you were treated less favourably: what was your employer’s conscious or subconscious reason for the treatment?
For the purposes of establishing direct age discrimination, it does not matter whether you have the protected characteristic in question it can be perceived age. Nor does it matter whether you have the age in question it can be by association.
- an employer treats an individual less favourably because it perceives that the employee is of a certain age e.g. the employer thinks that the employee is 60 when he is actually 50
- an employer treats an individual less favourably because of the age of someone with whom the employee associates e.g. because the employee’s wife is 10 years older than the employee.
Direct discrimination will also occur if your employer instructs, causes or induces another to commit age discrimination. It will also commit an infringement if it causes detriment to you because e.g. you refuse to obey an instruction to act in a way that would disadvantage persons of a particular age group.
Unlike other protected characteristics, direct age discrimination can be objectively justified if your employer can show that its treatment of you is a proportionate means of achieving a legitimate aim. Your employer’s aim must meet a social or employment policy aim, not just your employer’s private interests (e.g. facilitating the participation of older workers in the workforce).
What is indirect age discrimination?
Indirect age discrimination (section 19 of the EqA) occurs where:
- your employer applies to you a provision criterion or practice (PCP)
- you are of a particular age or age group
- your employer applies (or would apply) that PCP to persons not of the same age or age groupas you
- the PCP puts or would put you at a particular disadvantage when compared to other persons not of your age or age group
- your employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
There will be no indirect discrimination if your employer’s actions are justified. To establish justification, your employer will need to show that there is a legitimate aim (i.e. a real business need) and that the PCP is proportionate to that aim. Justification must be on objective grounds with an objective balance between the discriminatory effect and the reasonable needs of your employer.
In other words, indirect age discrimination occurs where your employment is subject to an unjustified condition which because of your particular age or age group, you find more difficult to meet.
- a role is advertised as requiring at least five GCSEs (with no equivalents) where everyone born before 1972 is likely to have taken ‘O’ levels
- a role is advertised as requiring at least 10 years’ experience is likely to disadvantage younger employees.
In determining whether there has been a detriment, it will be necessary to establish a pool of people for comparison on a like-for-like basis of those that have and have not been affected by the PCP.
What is age harassment?
Harassment occurs for a reason related to your age and is unlawful, if the conduct is unwanted and has the purpose or effect of:
- violating your dignity or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
Such conduct will only amount to harassment if in all the circumstances, your perception of the conduct, is reasonably considered to have that purpose or effect.
Your employer will be able to avoid liability for harassment if it can show it took reasonably practical steps to prevent it happening.
What is victimisation?
Victimisation occurs where you are treated less favourably than another person whose circumstances are the same because you:
- brought claim under the EqA
- gave evidence or information in connection with a claim under the EqA
- did any other thing for the purposes of or in connection with the EqA
- alleged that your employer or another person has committed an act that contravenes the EqA.
Less favourable treatment means a detriment (see above).
What remedies are available for age discrimination?
If you are an employee, worker or job applicant who believes your employer (or another worker) has discriminated against you then you can bring an employment tribunal claim.
If you who believe that an organisation has discriminated against you in the provision of goods, facilities and services, you can bring a claim in the county court.
Tribunals and courts can award unlimited compensation, which can include an award for injury to feeling and financial losses because of the discrimination.
How long do you have to bring an employment tribunal claim?
An employment tribunal claim under the EqA relating to age discrimination must be received by a tribunal within 3 months of the complaining act (i.e. 3 months less 1 day). This can be the last act in a series of detrimental acts over a period of time. The time limit is a strict one and will only be extended in certain circumstances.
The time limit can be extended during Acas early conciliation, which must be started before the time limit has expired.
Please see our page Acas early conciliation.
Contact our specialist age discrimination solicitors today
IBB Solicitor’s employment law specialists represent individuals at all levels no matter the size or sector of the company. If you feel that you have been subjected to unlawful discrimination, we can offer fast, reliable guidance on what to do.
Contact our specialist age discrimination solicitors today on 03456 381381 or email your details to firstname.lastname@example.org.