28 FAQs about age discrimination
- What are the requirements on age discrimination?
- When did the age discrimination requirements come into force?
- In practice, we don't need to worry about age discrimination requirements unless we employ people in their 50s and 60s, do we?
- In what way do age discrimination requirements affect our recruitment procedures?
- OK, so we have to watch our language in our recruitment ads. Do we have to do anything else to avoid a claim of age discrimination?
- Our sales people are all in their 20s. If we recruited someone in their 60s, they just wouldn't fit. We don't have to, do we?
- We don't have to recruit 17-year olds for jobs dealing with customers, do we? They'd obviously be no good.
- Is the law really saying that I need quotas for each age group on my workforce to avoid a claim of age discrimination?
- We're looking for a new MD. It will take them a couple of years to find their feet, and we want at least five years' work thereafter. Do we have to consider people of 60-plus?
- We like people to be physically fit, and this rules out most people over 40. Does this count as age discrimination?
- Are we allowed to advertise jobs specifically to age groups under-represented in our workforce?
- We've got a vacancy for a supervisor, but the best internal candidate would be 20 years younger than some of the people they would be managing. What do we do?
- Surely we can't be expected to select a 60 year-old for a job that requires two years' training?
- Our management is in its late 50s. We're selecting people for promotion now, and have good candidates of that age, but we'll end up with a succession problem. Can we select from younger people?
- We employ people who want to retire at 55. Do we have to stop them?
- What do we do about employees who are obviously slowing up as they get older?
- We have been retiring employees at 62. Can we still do this?
- Could we face an unfair dismissal claim if we need to get rid of someone at 69 or 70?
- We have an awkward employee in his late 50s, who we hoped was going to take early retirement. What do you suggest?
- We've got some good workers in their late 50s, and we'll be happy to keep them on, but they won't want to do it full time. Can we amend their terms?
- What do we have to do for employees approaching retirement age?
- Do we have to stop younger employees making jokes about the golden oldies - and vice versa?
- We require employees to have at least one year's service before they qualify for a season ticket loan. Is this unlawful discrimination?
- We have a collective agreement with our union for improved redundancy terms for employees with more than 20 years' service. Can this stand?
- Can we give longer-serving employees the pick of the holiday dates?
- What is 'objective justification'?
- What is a 'legitimate aim' under the age discrimination regulations?
- We plan to use length of service as a criterion when selecting employees for possible redundancies. Is this age discrimination?
1. What are the requirements on age discrimination?
Legislation came into force in 2012 making it unlawful to treat employees and job applicants differently on grounds of age, unless such treatment can be justified, or it falls within one of the exemptions to the law (see 26).
The default retirement age of 65 has been phased out. Employers are only able to compulsorily retire workers if it can be objectively justified.
2. When did the age discrimination requirements come into force?
The provisions in the Equality Act 2010 banning age discrimination in the workplace came into force on 1 October 2012. The default retirement age was completely abolished by 1 October 2011.
3. In practice, we don't need to worry about age discrimination requirements unless we employ people in their 50s and 60s, do we?
You need to worry about them if you employ anyone at all. They affect every area of employment - recruitment and selection, training and promotion, terms and conditions, and the whole of the retirement process. They make it unlawful to discriminate on grounds of age, directly and indirectly. They also make it unlawful to harass anyone intentionally or unintentionally (by subjecting them to behaviour which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment), or to victimise them (by treating them adversely because they have complained or assisted someone else in complaining about their treatment on grounds of age).
Therefore, you need to worry about your own processes and procedures, and also those of your employees, who must be deterred (by disciplinary process if necessary) from making offensive or hurtful comments about youth, age, or anything in between.
As with other areas of discrimination, if an employee can prove that there has been a difference in treatment which is probably due to discrimination, it will be up to you as employer to prove otherwise - or at least, to demonstrate that you have done everything possible to stamp out such discrimination. Since there is no limit to discrimination awards, and they often include an element for hurt feelings, failure to do so could be expensive.
4. In what way do age discrimination requirements affect our recruitment procedures?
You need to ensure that you are not discriminating towards or against anyone on grounds of age. So, for instance, you need to remove all references to age, whether express or implied, in your job advertisements, unless you can objectively justify them (see 26). Your safest course is to select against objective skills and competencies.
5. OK, so we have to watch our language in our recruitment ads. Do we have to do anything else to avoid a claim of age discrimination?
You also need to be certain you can justify the level of experience you are requiring. Asking for a safe and experienced van driver is one thing; asking for a van driver with a 10-year accident-free record is quite another. The first leaves it open to youngsters to apply, and you can then make a decision on them against the competition. The second effectively rules out anyone younger than their late 20s, and could be difficult objectively to justify.
Other points you need to consider when recruiting:
- Make sure that whoever interviews potential employees has no age bias, and scores interviewees according to objective skills and competencies.
- Consider removing references to date of birth and other age-revealing data from your application form (if any). Whilst not discriminatory in themselves, they could raise questions as to why you want the information.
- Don't ask for physical fitness tests unless you need them, and then only to the level that you need.
Once you have recruited someone, train managers and staff to recognise and avoid potentially discriminatory behaviour. In one case, off-the-cuff ageist comments in an employee's performance review - including that ‘ambition is not a motivation for Joe (due to age)’ - was held to be harassment on grounds of age.
Also, ensure policies and procedures clarify that discrimination and harassment in any form is not acceptable. Make sure staff are properly trained in equality and diversity issues, particularly, that managers are able to spot and deal with potentially discriminatory incidents that arise.
6. Our sales people are all in their 20s. If we recruited someone in their 60s, they just wouldn't fit. We don't have to, do we?
If you interview a 60-year-old, and they appear to be as good as or better than your existing team, you must not let their age affect your decision whether to recruit them or not.
Previously, employers have been able to refuse to interview anyone over a given age, but since October 2006 it has been unlawful to refuse to interview someone because of their age. There is very little any employer can lawfully do to control the age composition of a team, except in exceptional circumstances (see 11 and 26, below).
So yes, you might have to recruit someone in their 60s into a young sales team.
7. We don't have to recruit 17-year olds for jobs dealing with customers, do we? They'd obviously be no good.
You do not have to recruit a 17-year old for a job dealing with customers if you have satisfied yourself (and can, if necessary, prove it) that someone else can do the job better. But the mere fact that they are only 17 is insufficient reason for refusing to consider them for the job. For example, a 19-year old has won an age discrimination claim after convincing an Employment Tribunal that her employer, a London membership club, had dismissed her for being too young.
8. Is the law really saying that I need quotas for each age group on my workforce to avoid a claim of age discrimination?
No. In fact positive discrimination such as quotas are illegal under the legislation. Any positive discrimination intended to achieve a ‘balanced’ workforce is generally not permitted. That said, positive action is allowed under the legislation for the purposes of preventing or compensating for disadvantages linked to age (a ‘protected characteristic’).
9. We're looking for a new MD. It will take them a couple of years to find their feet, and we want at least five years' work thereafter. Do we have to consider people of 60-plus?
This might be one of those occasions when a decision to treat people differently on the grounds of age may be justified (see 1 and 26). The need to get a reasonable period of employment out of someone before retirement may be a justifiable reason for imposing age limits on potential recruits. However, the arguments for justification rely so much on individual circumstances, that it would be wise to obtain legal advice before going ahead.
10. We like people to be physically fit, and this rules out most people over 40. Does this count as age discrimination?
Yes. If you ask for a level of fitness in excess of the requirements of the job, you are imposing 'an apparently neutral position, criterion or practice' which 'puts or would put persons of a certain age group at a particular disadvantage compared with other persons', and which cannot be objectively justified: in other words, you are indirectly discriminating against people over 40 (and possibly against people with disabilities, as well).
If someone over the age of 40 were to apply for a job with you and get turned down, they could certainly argue that your fitness requirements were discriminatory, and an Employment Tribunal would find in their favour unless you could prove that they were not.
11. Are we allowed to advertise jobs specifically to age groups under-represented in our workforce?
Yes - but only where:
- the age groups concerned suffer from disadvantages because of their age
- you 'reasonably expect' your action, in encouraging them to take advantage of employment opportunities, to prevent or compensate for these disadvantages
The conditions under which such positive action is allowed are very specific. You could not use them, for instance, to recruit from only one age group, or to exclude applications from another age group. To do that without falling foul of the law, you would have to be able to justify your actions through the general test of objective justification (see 26).
If in doubt, take advice.
12. We've got a vacancy for a supervisor, but the best internal candidate would be 20 years younger than some of the people he would be managing. What do we do?
Have you identified, without reference to any potential candidates, the characteristics and skills you need for this job, and decided how much weight you are going to apply to each? They might, for instance, include strength of character, confidence, the ability to remain cool under fire, leadership skills or potential, and the ability to get on with people, as well as competence, experience and drive. However, they may not (except in some very limited circumstances: see 26 and 27) include age.
Once you have identified what characteristics and skills you want, and how much you want them, you can go ahead and score all the candidates for promotion against them; and whoever comes out on top should get the job. If this turns out to be a 27-year-old who will as a consequence find themselves in charge of people with 20 years' more experience - well, that's how legislation against age discrimination works.
What you have to do then is back the winner. Make it plain that you are doing so, and that anyone who objects must do so through accepted channels (your grievance procedures), or face disciplinary action. But also make sure you take steps to address any training requirements in your chosen candidate. In particular, if this is their first experience of supervisory responsibilities, make sure they have adequate training in disciplinary and grievance procedures. It will not do management's credibility any good if they take actions in an excess of zeal, which you then have to undo under threat of appeal to an Employment Tribunal.
It will help if you take early steps to introduce your workforce to the idea that discrimination (including harassment) on grounds of age is unacceptable, at either end of the spectrum. Training sessions, posters and group meetings on the subject may also protect you, if anyone takes legal action against you because of unlawful behaviour on the part of your employees. If you think the whole business is going to be tricky anyway (and unless you have an ideal candidate it almost certainly will be), consider taking professional advice, at least until your employees have had time to wrap their minds around what will be a very big culture change.
13. Surely we can't be expected to select a 60 year-old for a job that requires two years' training?
It depends both on the job, and on the individual. Assuming, first, that two years' training is really necessary - not in theory, but in practice; and secondly, that the individual in question will want to retire at 65, you may be able to justify different treatment on grounds of age ('objective justification': see 26 and 27). But the test of objective justification is a stiff one, and you will have to be able to produce evidence to back your assertions. Take legal advice.
However, a 2008 case is encouraging for employers. An employer's new pay structure required employees to hold a law degree to qualify for a higher pay grade. A 61-year old employee argued (correctly) that he did not have time to obtain the qualification before retiring. On that basis, he brought a claim before the employment tribunal for indirect age discrimination.
The Employment Tribunal upheld the claim, on the ground that employees in the age range 60-65 were discriminated against by this requirement, and such discrimination could not be justified. However, the Employment Appeal Tribunal (EAT) allowed the employer's appeal, ruling that it was no more difficult for an older employee to obtain the qualification than for a younger one, and the fact that an older employee would enjoy the benefit for a shorter length of time was not discriminatory. Also, the Tribunal had been wrong to identify employees within five years of retirement as a distinct group.
However, the EAT did state that, if it had concluded that there was discrimination in this case, it would have upheld the Tribunal's finding that such discrimination could not be justified, which shows how careful employers need to be.
14. Our management is in its late 50s. We're selecting people for promotion now, and have good candidates of that age, but we'll end up with a succession problem. Can we select from younger people?
Possibly. Succession planning is accepted as a possible reason for treating people differently on grounds of age, but whether it is acceptable ('objectively justified') depends entirely on the facts of the case. Take legal advice.
15. We've got employees who want to retire at 55. Do we have to stop them?
No, that’s their choice: the law makes no difference to that, one way or the other. If they can afford to retire at 55, or plan to do something else instead, there is nothing you can do to stop them. What legislation does do is prevent you from ‘retiring’ them unless you can come up with ‘objective justification’ (see 26).
16. What do we do about employees who are obviously slowing up as they get older?
Collect enough evidence to prove your point, then have a chat with them. They may be willing gradually to reduce their hours, or to work from home two or three days a week, or to shed some of their more onerous responsibilities - with an appropriate amendment to their terms and conditions. Or it may simply be that they have been doing what they are doing for so long, that they hadn't realised their pace had slowed. In most cases, you should be able to resolve the situation to the satisfaction of both parties. If a reasonable and flexible approach does not work, however, you may have to make it a disciplinary matter. Take legal advice.
17. We have been retiring employees at 62. Can we still do this?
Unless you can provide ‘objective justification’ (see 26), or can justify dismissing them, you cannot compulsorily retire your workers. In some occupations which, for instance, require a very high level of physical fitness, it may be possible objectively to justify a retirement. But if, for example, you have been comfortable functioning with employees of 61, you might have a hard job maintaining that most become incapable by 64.
18. Could we face an unfair dismissal claim if we need to get rid of someone at 69 or 70?
In theory, yes. In practice, you are unlikely to be sued for unfair dismissal if you retire an older worker if it can be objectively justified and you have followed all the correct procedures.
19. We have an awkward employee in his late 50s, who we hoped was going to take early retirement. What do you suggest?
Well, he might still take early retirement; but if not, it would be better to try to get an improvement in behaviour, through your disciplinary process if necessary, with dismissal as the ultimate sanction. In one case, the Court of Appeal ruled that dismissal of an 'obnoxious' employee was not unfair, even though it was the way he did things, rather than what he did, that was causing problems. You will, however, have to be able to justify your actions if you take this route, so take legal advice.
20. We've got some good workers in their late 50s, and we'll be happy to keep them on, but they won't want to do it full time. Can we amend their terms?
Yes, by agreement. You cannot amend them unilaterally to any significant degree - for example, hours worked or level of pay - without risking a claim for constructive dismissal. If you recognise a trade union working on behalf of these employees, you can renegotiate the terms with the union, otherwise you will have to get agreement from your workers on an individual basis.
21. What do we have to do for employees approaching retirement age?
Now that there is no default retirement age, you cannot compulsorily retire older workers unless it can be objectively justified. Workers are free to continue working as long as they wish and they are no longer required to request to work beyond 65.
Whilst there is no obligation to do so, it can be helpful to talk to employees about their future plans in order to assist your organisational planning. However, you should be careful not to single out older workers. Including general questions about future aims, aspirations and development needs in all annual appraisals can help you gauge employees' intentions without singling out specific groups of workers.
Once an employee has indicated that they wish to retire or scale back their responsibilities or working hours, there is nothing to stop you discussing the retirement or any adjustment to working arrangements. Bear in mind that an employee is entitled to change their mind. However, if they have given you formal notice to leave you are under no obligation to let them withdraw that notice.
22. Do we have to stop younger employees making jokes about the golden oldies - and vice versa?
Yes. There may be a certain amount of leeway on this - if an older worker makes a joke about himself, for instance, it may be okay for a younger worker to echo it - but from your point of view, it is safer just to deter people altogether.
23. We require employees to have at least one year's service before they qualify for a season ticket loan. Is this unlawful discrimination?
No. It would be difficult to argue that a requirement for a single year's service counted as an age-based criterion for higher benefits. In any case, one of the specific exemptions to the legislative requirement that people should not be treated differently on grounds of age relates to any length-of-service requirement of five years or less. So where eligibility for a benefit depends on up to five years' service, there is no problem over offering it.
24. We have a collective agreement with our union for improved redundancy terms for employees with more than 20 years' service. Can this stand?
Probably. The second specific exemption to the requirement that people should not be treated differently on grounds of age relates to length-of-service requirements that mirror a similar requirement in a statutory benefit - as for example contractual redundancy schemes where service-related provision is more generous than under the statutory scheme. If in doubt, take advice.
25. Can we give longer-serving employees the pick of the holiday dates?
Possibly. Although legislation bans different treatment on grounds of age, there is a general exemption where:
- the award or increase in a benefit is meant to reflect a higher level of experience, reward loyalty, or increase motivation; AND
- the employer expects business benefits from the above; AND
- the criterion (whatever it is) is applied similarly to all staff in a similar situation
If you believe that the business will benefit from the experience and loyalty of your longer-serving employees, it may therefore be both reasonable and lawful to allow them the pick of the holiday dates. If, however, you allow one group of long-serving employees the pick of the holiday dates, but insist that other equally long-serving employees must vie with everyone else on a first-come, first-served basis, you may well fall foul of the legislation.
In general terms, it would be advisable to review all your pay and benefits, if you haven't already done so, to ensure they comply with age discrimination legislation.
26. What is 'objective justification'?
Objective justification is what you need to show, if you want to stay within the law while treating people differently on grounds of age, unless you can claim:
- you are acting within the general exemption (see 25)
- you are acting within one of the specific exemptions (see 23 and 24)
- you are complying with other legislation containing age restrictions
- you are undertaking 'positive action' (see 11)
- you have a 'genuine occupational requirement' for somebody of a particular age - for example, a young actor to play Romeo in 'Romeo and Juliet'
To prove 'objective justification', for either direct or indirect discrimination on grounds of age, you must be able to show that what you are doing is an appropriate and necessary ('proportionate') means of achieving a 'legitimate aim' (see 27).
To prove that what you are doing is appropriate and necessary, you must be able to show:
- that it will actually contribute towards achieving your 'legitimate aim'
- that the benefits you expect it to produce are sufficient to justify the amount of discrimination you are prepared to practise
- that you are practising no more discrimination than is strictly necessary
If you have age-related practices that fall outside the general and specific exemptions, don't rely on being able to prove that they are justified, or not, without consulting your lawyers first.
27. What is a 'legitimate aim' under the age discrimination regulations?
The concept of 'objective justification' (see 26) is hard to pin down, partly because it depends on employers establishing that they have a 'legitimate aim'; and there is neither definition nor description of what a 'legitimate aim' may be. If you want to claim 'objective justification', therefore, it is going to be up to you to argue that your aims were legitimate. Even case law, as it builds up, is unlikely to help much, because the outcome of each case depends on its own particular circumstances.
Broadly speaking, however, you only have a 'legitimate aim' which may justify you in treating people differently on grounds of age, where you have a real need, and there is no reasonable alternative: for example (and these are only examples):
- business needs
- health, welfare and safety
- facilitation of employment planning
- particular training requirements
- encouraging and rewarding loyalty
- the need for a reasonable period of employment before retirement
- a wish to recruit or retain older people
You will need to be able to prove that:
- you have such a need
- the form of age discrimination that you are practising is necessary to resolve it
- the benefits of resolving it outweigh the disadvantages of practising age discrimination
- you cannot achieve such resolution from any lesser form of discrimination
Don't attempt this without taking legal advice: it is nowhere near as innocuous as it looks.
28. We plan to use length of service as a criterion when selecting employees for possible redundancies. Is this age discrimination?
Be very careful - and take legal advice. Older employees are likely to have been with you longer, so using length of service as a criterion is potentially age discrimination against younger employees. Men may also have longer continuous service than women, so it is potentially sex discrimination too.
However, the High Court has said that using length of service as one of the criteria when selecting employees for redundancy can, in some circumstances, be objectively justified - it is not necessarily age discrimination (although using 'last in, first out' is likely to be discriminatory).
In that case, the employer argued that taking long service into account was a 'benefit'. The age discrimination rules contain an exception that allows an employer to use length of service as a criterion in relation to the award of a 'benefit' that is potentially discriminatory, where it fulfils a business need (eg by encouraging the loyalty or motivation, or rewarding experience, of some or all of the workers).
The Court decided that the policy of giving credit for long service on a redundancy amounted to a benefit for the employee concerned - the benefit was the retention of employment which would otherwise be lost.
The tribunal also found that the criterion fulfilled a business need, because length of service equated to loyalty and experience, and meant that older workers were better protected from losing their jobs than younger workers in a difficult economic climate. The employer had therefore justified the impact of the age-related benefit.
However, in another case concerning a pay scheme that rewarded longer service (but, significantly, a claim based on indirect sex discrimination on the grounds that women generally have shorter periods of continuous service than men, rather than an age discrimination claim) the European Court of Justice accepted that, in general, length of service went hand in hand with experience, and experience would enable a worker to perform better. So normally, employers do not need to provide a justification for using length of service as a criterion in pay schemes in order to avoid indirect sex discrimination claims.
But the Court also accepted the 'serious doubts' the claimant had raised as to whether, once a worker had reached a certain level of experience, further service made a real difference to their performance. So where a worker can raise serious doubts about the benefit provided by extra experience, using length of service may be a form of indirect discrimination. It is unclear whether this 'serious doubts' test could also be applied in an age discrimination case to defeat a justification that, by rewarding length of service, the employer is rewarding experience.
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