August 30, 2018

Unless objectively justified, age discrimination is where a person is dismissed, denied training, refused a promotion, given worse terms and conditions, and isn't employed due to their age.

Four Main Types Of Age Discrimination:

Direct Discrimination

Treating an employee less favourably because of their actual or perceived age, or the age of someone with whom they are associated with.

Indirect Discrimination

Policies and criterion which although apply to all employees disadvantage a particular group of employees of a certain age.

Harassment

Unwanted conduct relating to age which violates an individual’s dignity and creates a hostile working environment

Victimisation

This arises as a direct result of a discrimination or harassment claim.

Where an employee is subjected to detrimental treatment due to the fact they have made a complaint about discrimination or harassment, or intend to give evidence about discrimination or harassment, this is victimisation.

Avoiding Age Discrimination In The Workplace: Key Points To Remember

Recruitment

As an employer, whom you recruit should be based on their skills and abilities to do the job, and not on their age.

When putting out job adverts for a role, it is best to avoid references to age in both the job description and person specification.

On the application form, it is good practice to remove the date of birth from the main application, keeping it in a diversity monitoring form that your HR/personnel department may retain.

By not discriminating candidates based on their age, you will be attracting a larger range of applicants giving you access to a larger set of skills, talents and diversity.

Retaining Staff

Promotions and training should be made available to all employees on a fair and equal basis.

If you do feel that an age criterion is necessary, there must be an objectified reason for this.

You should monitor provisions and training to make sure that no particular age group is unable to attend or take part.

Equality Policies

You should make sure that all staff members are aware of the equality and diversity policies, and that the relevant managerial staff are trained in how to deal with age discrimination, bullying and harassment.

The policy should cover any age-related issues.

Performance Appraisals

All appraisals should be done fairly and equally with no bias.

They should be based solely on the employee’s actual performance, with no judgements or misconceptions about their age.

Redundancy

Redundancy selections should not have any considerations that would cause any discrimination based upon age.

Objective Justifications And The Occupational Requirement

You may be able to treat someone differently on the grounds of age lawfully if you have an objectively justified reason for doing so.

However, it will typically only be justified in exceptional circumstances and must be a proportionate means of achieving a legitimate aim.

For it to be proportionate – it must contribute to a legitimate aim.

The discrimination should be massively outweighed by the overriding objective of the legitimate aim, and there must be no reasonable alternative.

If the legitimate aim can be reached using less discriminatory means, then that alternative method must take precedent.

What Constitutes A Legitimate Aim?

  • Economic reasons, such as business needs and particular training for a specific job.
  • The health, welfare and safety of an individual.

It is challenging to prove an objective justification.

Evidence must be provided, assertions alone will not be enough to meet the threshold.

It may be an occupational requirement that a person is of a certain age for a specific job role.

Factors to consider if this applies will be the nature of the job role and the context in which the work is being carried out.

If or when the job role changes, this requirement should be reconsidered to see if it is still applicable.

Employers Takeaway

  • Age discrimination is where a person is dismissed, denied training, refused a promotion, given worse terms and conditions, and isn't employed due to their age. 
  • There are 4 main types of age discrimination - Direct, Indirect, Harassment & Victimisation;
  • You may be able to treat someone differently on the grounds of age lawfully if you have an objectively justified reason for doing so.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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