If you have experienced age discrimination at work then you may be able to negotiate an enhanced exit package. The Equality Act 2010 protects everyone against discrimination in the workplace. It also covers situations in wider society but in this article we will focus on workplace applications.
As the working population ages, due to longer lives and later retirement ages, age discrimination could become more prevalent and so it’s even more important to be aware of the motivations behind your employer’s actions. An increased focus on digital processes and a demand for a younger, cheaper workforce could both be seen as factors which could lead to age discrimination.
Age discrimination at work which results in termination of employment would count as unfair dismissal as well as discrimination.
Types of age discrimination at work
Age discrimination can be experienced in several ways, and is most common in older employees, but can be experienced by anyone. The Equality Act 2010 states that discrimination can come in any of four forms.
- Direct discrimination
- Indirect discrimination
You can read more in our related article about other types of discrimination in the workplace. In what follows we have applied the above categories to a situation of age discrimination at work:
Direct age discrimination at work
This is when an individual/s acting on behalf of the employer is treating someone less favourably than others because of their age, and is unfortunately a behaviour that is still surprisingly common in the workplace. A situation to be aware of for example, would be if a younger employee is promoted ahead of you even though you have an equal track record. This could be direct age discrimination if it based purely on the ages of the employees.
For this type of age discrimination to be present there is the requirement for there to be comparison with colleagues who are similar in characteristics/experience, but who differ in age. Direct discrimination can be objectively justified by your employer, but only if there are good objective grounds for the discrimination. This can be difficult for your employer to prove and so your employer will often offer a settlement agreement to you if you can put forward a good case and negotiate well with the facts at your disposal.
Indirect age discrimination at work
This is when an employer or individual is putting rules or arrangements in place that apply to everyone, but that place someone of a certain age at an unfair disadvantage. An example may be to only offer a certain training programme to employees who are within three years of graduating, as this is likely to discriminate against older employees.
It is irrelevant whether the discrimination was intentional or not. It is again necessary to compare your situation with colleagues who are similar but who differ in age. Indirect age discrimination can also be objectively justified by your employer.
Age discrimination at work – Harassment
This describes unwanted behaviour linked to an employee’s age that violates an employee’s dignity, or creates a hostile, intimidating or degrading environment for them to work in. The unwanted behaviour could be classified as offensive, intimidating, or distressing. Common examples of age harassment at work could include age-related derogatory nicknames (eg. Grandad), or comments about natural signs of ageing such as wrinkles, grey hair etc.
An employee experiencing age discrimination in the form of harassment at work might be excluded from meetings or social events because of their age. Pressure to retire could also, dependant on other circumstances involved, be seen as age discrimination.
An important update to the Equality Act 2010 is that it has been extended to include age-related harassment not only by employees at the company, but also by unwanted conduct from clients, customers or suppliers. If you make an official report/complaint of these behaviours to your employer and they take no action after at least three occasions (all which have been reported by you), they may be liable for age discrimination.
Age discrimination at work – Victimisation
This is when an employee is treated unfairly by the employer or an individual acting on behalf of the employer because they’ve previously complained about discrimination or harassment (or it is believed by others that they made a complaint). The complaint or grievance that the employee made about age discrimination needn’t have been regarding themselves for them to experience victimisation. This area is slightly different as when assessing your treatment, the law does not compare how you have been treated in comparison to other similar colleagues.
Can age discrimination at work ever be justified?
With direct, indirect and harassment age discrimination, any behaviour from your employer or colleagues based on your ‘perceived age’ can also count as age discrimination.
As you can see, it’s possible for your employer to objectively justify various types of age discrimination. This, however, does not mean that their justification will stand up in legal argument and this is where the assistance of a specialist employment law solicitor can make a world of difference.
Although the Equality Act 2010 is rightly in place to protect employees against age discrimination, the law in the UK also recognises that in some instances it is necessary and justifiable to discriminate on the basis of age either directly or indirectly.
On Gov.co.uk they explain this as, “The ban on age discrimination is designed to ensure that the new law prohibits only harmful treatment that results in genuinely unfair discrimination because of age. It does not outlaw the many instances of different treatment that are justifiable or beneficial.”
In the case of age discrimination at work, an employer would have to prove that there was a good reason for the differential treatment – this is known as ‘objective justification’. The employer would have to prove that discriminating you because of your age was ‘proportionate means of achieving a legitimate aim’. This however can be very hard to do, so the odds are in the favour of the employee.
A difference of the treatment of the employee due to their age is also counted as lawful if it was a ‘positive action measure’, for example providing access to certain training. If this is the case with you then it’s unlikely that you would want to take action against your employer!
Still at work? Correct process for dealing with age discrimination
If you feel you are being discriminated against due to your age, it’s important to take all the correct steps as this will strengthen your negotiating position when it comes to claiming compensation or a settlement agreement. When experiencing age discrimination at work, the first step you should take is to talk to your line manager. If you are reading this, there is a good chance that you have already done this and are looking for the next step. The appropriate course of action would then be to lodge an official grievance letter. You can find a variety of template examples for these in our grievance letter templates. If your case requires it we also have senior solicitors available who would be able to guide you through official grievance procedure.
Make sure to keep as many records of you can of all events (read our advice on keeping records).When they receive your grievance letter detailing your description of the age discrimination you have faced, your employer will have to call a meeting. If you are unsure of how these meetings are conducted you can read our advice article on Without Prejudice meetings.You may also be able to lodge a claim at the employment tribunal at this stage.
Think you’re being forced out of work because of your age?
There is no national retirement age at which your employer can require you to retire. In some circumstances your employer may be able to justify having a retirement age for their employees but this can be difficult to do. Even if your employer has a retirement age they are likely to be nervous about whether or not they can justify this.
If you are being asked to retire in accordance with your employer’s retirement age you may still be able to negotiate an ex gratia payment (a discretionary payment that’s usually tax free) because your employer will not want to risk a Tribunal finding that their retirement age is not justified. If your employer does not have a retirement age there is no basis for them to ask you to retire. If you are being asked to retire, even if your employer does have a retirement age, we may be able to help. Get in touch to find out more.
Been dismissed because of your age? It may be unfair dismissal
If you have had your employment terminated, and think that this is because of your age, then, in addition to a discrimination claim you would want to make a case for unfair dismissal. In this situation, there is a chance that you would be able to negotiate a good settlement agreement with your former employer where you would be paid a lump sum and be asked to sign a document waiving rights to sue the company in the future for the same claim of age discrimination. As there are various routes to go down and these have pros and cons, it would be beneficial to have a consultation with an employment lawyer. You can enter your details into our online enquiry form to request a free call back from a senior employment law solicitor.
Your rights if you are over 65 years of age
If you are over the age of 65 and are employed, you are still covered by the protection of the Equality Act 2010. Even after you have reached your employer’s normal retirement age, if they have one, for your position, you retain the right to make a claim for unfair dismissal.
You also still have the right to claim the statutory minimum redundancy payment if you are made redundant. Employers are also not allowed to discriminate in respect to the benefits they provide for employees over 65, except to the extent this can be objectively justified.
Top TipsWill Burrows
Age discrimination can occur at any age.
You can’t be forced to retire at any age unless your employer has a justified retirement age.
Age discrimination can sometimes be justified, so seek legal advice to assess your position.
How to get a settlement agreement after experiencing age discrimination at work
If you want to take action you may be able to get compensation from your employer for financial loss and injury to feelings. It can be tricky to prove the acts and also the effects of age discrimination but we try to provide as much free information on our website as possible to help you do so. Find out more about negotiating with your employer, settlement agreements, and tribunal claims in our wide range of articles and particularly in:
As an employment law practice we believe it is usually in the client’s best interest to settle the case with their employer without having to attend a Tribunal. Taking a case to tribunal can be a very stressful, expensive and drawn out process, with no guarantee of a positive outcome. We are, however, prepared to represent you if it is the right route for you.
We aim to get clients a settlement agreement, and to make sure that this package is as favourable as possible for the employee. We work with you to gather the evidence and arguments needed for your case, expertly analysing which elements will have the most leverage, and then to use our many years of experience to negotiate with your employer until we reach an agreed settlement package. We have been commended on the efficient and dedicated service we provide – we know that the sooner your case is settled, the sooner you can positively move on with your life.
You might also want to read: