Age Discrimination at Work

It is against the law for your employer to discriminate against you due to your age. This discrimination may be a refusal to employ you, or generally treating you worse than other employees due to your age (unless there is good reason to do so).

Age discrimination includes:

  • Being too young
  • Being too old
  • Combined with gender discrimination – against young women in their twenties due to a fear they will have children and take maternity leave
  • Discrimination by association – due to the age of someone you know, such as caring for an elderly relative or young child

The Law

It is illegal to discriminate against employees or potential employees due to their age (or of course gender, race or sexual orientation). This law applies to:

  • Those searching for work or applying for a new job
  • Those in work
  • Agency workers
  • Those seeking a reference from a previous employer

The law is applicable no matter how long you have worked for an employer, and the size of the company does not matter.

Your employer must also stop bullying in the workplace by other employees because of your age. If other employees are bullying or harassing you because of your age, even if in the form of a jest (e.g. Calling you ‘Grandma’), you should tell your employer who must take action to prevent this.

Exceptions

There are exceptions to the law, as listed below:

  1. You are in the armed forces
  2. You are an unpaid volunteer
  3. Your employer has good reason to treat you differently or not employ you due to your age.

What is ‘good reason’?

The law does not expressly define ‘good reason’ and so this depends upon common sense and can vary from business to business. However here are some examples of when discrimination may be allowed:

The potential employee is of ill-health (partially due to their age) – The issue is therefore health related (e.g. Working in a club which uses a lot of dry ice, when they clearly have breathing difficulties).

The potential employee is unable to perform the tasks required – in the job they have applied for (partially due to their age). The issue is therefore that they have applied for a job they are unable to fulfil (e.g. A role in a warehouse or construction site that requires a lot of manual lifting).

The potential employee is unable to fulfil the role – they have applied for without breaching other laws or regulations (due to their age). The issue is therefore that they are prevented from carrying out the role due to age restrictions. (e.g. A 16 year old can legally work, but cannot sell alcohol at a restaurant or bar if they will not be supervised).

The employer sets a requirement of needing previous experience. – Clearly this means that they will not then hire 16/17 year olds. This is allowed if necessary for the job (e.g. Running a legal department). However an employer cannot insist on an unnecessary amount of experience, as this would be discriminatory against younger employees.

Pay

The National Minimum Wage is set by the Government. This lists different minimum amounts of hourly pay, depending upon an employee’s age. The National Minimum Wage changes annually (usually to increase with inflation). The current rates (from April 2018) are:

  • Aged 25 and over – £7.83
  • Aged 21 to 24 – £7.38
  • Aged 18 to 20 – £5.90
  • Aged 16 to 17 – £4.20

Whilst the National Minimum Wage brackets are directly affected by your age, it is not discriminatory for your employer to pay you a lower amount than other, older employees, (as long as this amount is above the hourly minimum amount).

Job applications and interview

An employer can ask for your date of birth on an application form or during an interview. They cannot however refuse to employ you on the basis of your age, as this would be discriminatory (unless they have good reason as detailed above).

So why can they ask for your date of birth?

There can be many good reasons for needing to know your age. Lots of work places have regulations affecting your workers (eg alcohol sales, using hazardous machinery etc) so your prospective employer will need to know what requirements they will need in place for you. Employers may also want to know your age so that they can work out if there are any gaps in your education or employment which they may wish to ask you about.

Age discrimination and retirement

Your employer cannot dismiss you or force you to retire just because you have reached a certain age (e.g. 65 years) unless they have good reason for doing so. If they try to force you to retire without good reason, this would be age discrimination.

A scheme called the ‘default retirement procedure’ was in force until April 2011. This scheme cannot be used by employers anymore. However if your employer was already using the procedure, you may have been recently forced into retirement. If you turned 65 before 01/10/11 and your employer followed the ‘default retirement procedure’ including giving you notice by 05/04/11 that they wanted you to retire, this was not discriminatory. The latest date that you could have legally been forced to retire under this scheme was 05/10/12.

The law now states that your employer cannot force you to retire at a certain age. This will apply to most people, though there are some exceptions (e.g. Due to health and safety). Your employer should be able to clearly set out their reasons for forcing you to retire, so if you are unsure why you were made to retire, ask them to explain their reasons in writing.

Some employees choose to retire early. You are entitled to do so at any age, provided that you give your employer the amount of notice required in your contract. If you choose to retire early, you will not be entitled to any state pension until you reach the retirement age applicable to you (these vary based upon your year of birth). You may also not be entitled to any workplace pension payments until you reach the requisite age, but check the criteria for any workplace pension you have in place, as some do allow earlier payments if you retire early due to poor health.

Age discrimination and redundancy

If you are made redundant and have worked for your employer for over two years, you will be entitled to statutory redundancy pay. This is an amount of compensation set by law:

  • If you are under 22, you will get half a week’s pay for each full year of employment with your current employer.
  • If you are aged 22 to 41, you will receive one week’s pay for each full year of employment with your current employer.
  • If you are aged 41 or older, you will receive one and a half week’s pay for each full year of employment with your current employer.

There is a redundancy pay calculator at www.gov.uk/calculate-your-redundancy-pay which will help you calculate your statutory redundancy pay entitlement.

If you have been made redundant and not worked for your employer for two years, you may be entitled to contractual redundancy pay. This is for an amount set by your employer in your contract. They may also offer those entitled to statutory redundancy pay a larger one-off payment.

You are entitled to any redundancy pay (statutory or contractual) regardless of your age; there is no upper or lower age limit for redundancy pay entitlement. Employers may however select employees for redundancy based upon how long employees have worked for them. Employers can’t directly discriminate based upon age, but clearly if their process for redundancy selection is those who have worked for the shortest time period, this may disproportionately affect younger employees.

What to do if you think that you have been discriminated against

First of all, speak to the person / persons you feel have been discriminating against you. Particularly in the case of colleagues making jokes / comments, they may not realise how these have made you feel.

Always tell your manager about what has happened, and also contact your personnel department if you have one. Put this in writing and keep a copy. Your manager is required by law to prevent age discrimination against you by your colleagues, another manager or customers. If the person concerning you is your manager, you should tell someone higher up in the organisation.

If talking to your manager does not work, raise a formal written grievance. Your employer should have a procedure for raising grievances. At the same time, collect evidence to support your complaint. Evidence may include:

  • A record of the date, time and location of any incident
  • Copies of any written discrimination (letters / email)
  • A log of any witnesses to incidents

The Employment Tribunal

If you are unable to resolve the problem using your company’s internal complaints handling procedure, you can take your employer to an Employment Tribunal.

An Employment Tribunal can:

  • Determine your rights
  • Award compensation (there is no upper limit on this)
  • Make recommendations to your employer

It is extremely important that you act swiftly if you wish to make a complaint to the Employment Tribunal. Even if you are using your company’s internal complaints handling procedure, you have three months from the date of the last time you were discriminated against to make your claim.

To start your claim at the Employment Tribunal, you will need to fill in a ET1 form, or you can fill in the online version. Your local Citizens Advice Bureau will have copy paper forms and be able to assist you with your claim. The Employment Tribunal public enquiry line (0845 795 9775) will also be able to assist you and provide ET1 forms in alternative formats.

Age discrimination is a serious problem, so do not suffer in silence; speak to your employer and if necessary, refer your problem to the Employment Tribunal.

Leave a Reply

Your email address will not be published. Required fields are marked *