Age discrimination at work: guide for employees

In this article we outline what is meant by age discrimination and then look at what you can do if you are being discriminated against at work because of your age.

If you have experienced age discrimination at work, you will need the evidence to back up such allegations.  If you have that, then you will probably be in a position to negotiate an enhanced exit package or settlement agreement and move on to better things.

We would only ever recommend taking your claim to an employment tribunal if you absolutely can’t settle out of court with your employer.  As experienced age discrimination solicitors who expect to win the cases we take on, Monaco Solicitors are well placed to help you with both.

How common is age discrimination in the workplace?

Age discrimination applies to workers of all ages.  However as the working population ages, age discrimination amongst older workers appears to be becoming more prevalent and it’s important to be aware of the motivations behind your employer’s actions.

A study published in early 2020 found that 64% of older workers in the UK said they were concerned about age discrimination:

‘Both older men and women report biases in the workplace, particularly relating to their ability and performance. They report being seen as less innovative, less able to adapt and less qualified than younger members of staff; they suffer in a working culture that favours younger employees.’

An increased focus on digital processes and a demand for a younger, cheaper workforce for example, could both be seen as factors contributing to increased incidence of age discrimination.

Age discrimination at work which results in termination of employment would give grounds for a claim of unfair dismissal as well as one of discrimination.

What kinds of age discrimination are there?

Age discrimination in the workplace can be experienced in several ways.  It is most common amongst older employees, but can be experienced by younger people as well. The Equality Act 2010 states that discrimination can come in any of four forms.

  • Direct discrimination
  • Indirect discrimination
  • Harassment
  • Victimisation

 

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 situations of age discrimination at work.

Direct age discrimination at work

This is when an employer or individual/s acting on behalf of the employer is treating you less favourably than others because of your age, and is unfortunately a behaviour that is still surprisingly common in workplace environments.

An example of direct age discrimination would be if a younger employee is promoted ahead of you even though you have an equal track record and the promotion was based purely on the ages of the employees.

To assess this type of age discrimination, you need to be able to compare yourself with colleagues who are similar in characteristics/experience, but who differ in age.

Direct age discrimination can be ‘objectively justified’ by your employer (in other words, permitted in some circumstances).   Objective justification is a complicated aspect of employment law which we can only touch upon here and is discussed further below under the heading of whether age discrimination can ever be justified.

It can also be difficult for your employer to prove and so your employer will often offer you a settlement and exit package 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 of indirect age discrimination would be if an employer  only offered 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. (See below for further discussion of objective justification.)

 

Age discrimination at work – Harassment

Harassment describes unwanted behaviour linked to your age that violates your dignity, or creates a hostile, intimidating or degrading environment for you 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 also be excluded from meetings or social events because of their age. Pressure to retire could also, depending 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 you are treated unfairly by the employer or an individual acting on behalf of the employer because you have previously complained about age-related discrimination or harassment (or it is believed by others that you made a complaint).

The complaint or grievance that you may have made about age discrimination needn’t have been about yourself for you to experience victimisation. This area is slightly different from the others above, as when assessing your treatment, the law does not consider how you have been treated in comparison with 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 mentioned earlier, 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.

The gov.co.uk website explains this as follows: “The ban on age discrimination is designed to ensure that the 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 or ‘objective justification’ as mentioned earlier.

In its article Justifying Discrimination, the Citizen’s Advice Bureau offers the following excellent example of objectively justifying what might otherwise be considered as a case of indirect age discrimination:

‘The fire service requires all job applicants to take a number of physical tests. This could be indirect discrimination because of age, as older people are less likely to pass the tests than younger applicants. But the fire service can probably justify this.

‘Fire fighting is a job which requires great physical capability. The reason for the test is to make sure candidates are fit enough to do the job and ensure the proper functioning of the fire service. This is a legitimate aim. Making candidates take physical tests is a proportionate way of achieving this aim.’

The employer would also have to prove that discriminating against you because of your age was ‘proportionate means of achieving a legitimate aim’. Generally speaking, this can be very hard to prove, so the odds are in the favour of the employee.

A difference in the treatment of an 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!

What’s the right way to deal 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 exit package.

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 tried such an informal approach and are now looking for the next step.

Depending on the time available, you could put together a strong ‘without prejudice’ letter as your next step. We have a variety of guides on different aspects of without prejudice, ranging from how and when to use without prejudice to ten tips on how to write without prejudice letters and lots of without prejudice letter examples and templates to help you.

The next appropriate step would be to lodge an official grievance letter. See our guide to check out what a grievance is and when to use one. Guidance on how to write a good grievance letter, together with a variety of examples and templates can also be found in our guide on grievance letters and how to write them.

Sometimes it is helpful to have the help of an experienced age discrimination solicitor – like the senior specialists at Monaco Solicitors – to guide you through the official grievance procedure, as it’s really important to get your grievance right.

From the moment you suspect that you are being age discriminated against, start to gather evidence and make sure to keep as many records of you can of all relevant events.  Read our advice on keeping records and see also the section below on proving age discrimination.

When they receive your without prejudice or 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.

How can you prove age discrimination?

As with most forms of discrimination at work, you may suspect that you are being discriminated against due to your age, but it’s quite another matter if you want to prove it to support your case.

The case outlined below gives you an idea of the different evidence you would need, and how to obtain it, in order to substantiate an age discrimination claim.

Example of an age discrimination case

You think you are being discriminated against because of your age. Lots of small incidents have occurred recently that led you to that view, but you have tried to ignore them. It was brought to a head when you applied  internally to undertake a lucrative 12-month special project.

This project depends critically on the successful candidate learning how to use a complicated piece of software in a very short time and continuing to exploit the software for the duration. There were two of you in the running and the other, younger, candidate has now been selected.

You think you have been discriminated against due to your age, but how can you be sure that your rejection was actually age discrimination? Could it in fact be that your younger colleague was selected because of their strong proven track record of technical competence or some other reason(s) that made them more suitable for the role than you?

Proving the age discrimination

If you wanted to try proving age discrimination in the above case, you would need at least:

  • to exemplify (with clearly explained relevant examples) the ways in which you have the same/similar level of technical ability/experience as your colleague;
  • to identify other aspects of the role where your qualifications and/or experience make you a stronger candidate;
  • to provide evidence that your age was at least one of the reasons for rejection and therefore discriminatory against you.

 

To achieve the first two points above, it would help if you could find out information about your colleague’s relevant work experience and qualifications, without of course taking confidential information to which you have no right, and which could be construed as gross misconduct. (See our guide on evidence and taking confidential documents.) It would also be sensible to request specific feedback on your interview compared with your colleague’s interview.

In an attempt to provide evidence that your rejection was age discriminatory against you, you could also:

Make a subject access request (which would require your employer to provide all documents/records, in whatever form, that you are the subject of), in the hope that the request would reveal some age discriminatory exchanges between management about your application (see our guide on making a subject request).

Use ACAS’s discrimination questionnaire to ask your employer questions about possible age discrimination against you. This ACAS procedure helps you ask the right questions to flush out any evidence of discrimination. See also our own guide on the subject.

Obtain witness evidence from someone who’s seen written sources, or overheard/been party to discussions about your application and/or other incidents of age discrimination against you, and is willing to provide a written statement of what they have witnessed.

Unfortunately, obtaining written witness evidence is easier said than done. That’s because witnesses don’t always want to confirm what they’ve witnessed for fear of victimisation against them by your employers (see above). Of course, if a potential witness is about to leave their employment, or has recently left, then they are likely to be more willing to help you. (See our article on witness evidence for further discussion.)

You might also like to have a look at our wider guide on evidence gathering for further ways you can collect and compile evidence to substantiate any kind of claim and apply it to your case.

Think you’re being forced out of work due to 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 it.

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  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 solicitor who has proven experience in age discrimination. You can enter your details into our online enquiry form to request a free consultation with one of our senior employment law solicitors if you wish.

What are your rights if you’re over 65?

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 Tips

Will Burrows
  • 1
    Age discrimination can occur at any age.
  • 2
    You can’t be forced to retire at any age unless your employer has a justified retirement age.
  • 3
    Age discrimination can sometimes be justified, so seek legal advice to assess your position.

How to get a settlement agreement after age discrimination

If you want to take action you may be able to get compensation from your employer for financial loss and injury to feelings as well. It can be tricky to prove some of 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 in these circumstances,  and also about employment tribunals, in the wide range of articles in our website and particularly in the Helpful Guides listed at the end of this article.

As a specialist employee-only employment law firm, Monaco Solicitors 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 exit package, 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, to analyse 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.

 

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