Ageism has repeatedly been found to be the leading form of discrimination in the workplace, affecting both job applicants and workers.

Individuals are protected by law against discrimination on the grounds of their age. With the proportion of mature workers set to increase significantly over the next 20 years, employers need to be aware of the risks of treating someone unfairly because they are older. Employees who have experience ageism are backed by the law and should not be afraid to ask their employer to address the situation.

Workplace discrimination legislation: The Equality Act 2010

Under the Equality Act 2010 someone cannot be treated less favourably than others for the following reasons:

• They are of a certain age or are in a certain age group
• Someone thinks they are of a certain age or in a certain age group
• They are connected to someone of a specific age or in a specific age group.

Types of age discrimination

Employment law discrimination because of someone’s age can be divided into four different categories.

Direct discrimination

Direct discrimination occurs if someone is not given an opportunity because of their age, for example, promoting only younger workers with similar experience. There may be a defence if an employer can show a good reason for the discrimination, for instance, if the job is physically very demanding, setting a maximum age limit might be permitted.

Indirect discrimination

Indirect discrimination occurs when a particular policy puts people in a specific group at a disadvantage. For example, not employing someone because they are overqualified may indirectly discriminate against older people who will tend to have more qualifications and experience.

There may be a defence if it can be shown that there was a good reason for the policy and that the employer’s aims were reasonable.

Harassment

Harassment is when someone is made to feel offended, intimidated or humiliated. This could be by a fellow worker, for instance, if derogatory remarks about someone being slow because they are older.

An employer may have a defence if they have done everything possible to stop the behaviour.

Victimisation

If an employee has complained about age discrimination or has helped someone else with a complaint and they are subsequently treated badly because of this, it could constitute victimisation.

Recruitment bias

Discrimination can occur at any stage during the recruitment process, from the drafting of a job advert through to interview and selection. Not hiring someone because they are overqualified could be seen as discrimination against older candidates. Asking for young applicants or recent graduates or capping the number of years of experience should also be avoided.

Sometimes, looking for someone who ‘fits in’ can discriminate against older employees, if this is a way of choosing someone similar to existing, younger workers. But while an older candidate might not be of the same culture, they might bring something unique and more valuable to the business.

Using a blind selection process can help employers approach the task of choosing the right candidates without unconscious bias.

Training and promotion

Employers must be careful not to discriminate against older workers when it comes to training and promotion. There are a number of myths about older workers, which have been shown to be untrue, including that an employer is less likely to get their investment back if they train staff who are over 55, that older employees are harder to train and less able to learn new skills and that the performance of employees tails off as they get older.

In fact, well-organised training works for any age group, while there has been shown to be no deterioration in performance of most types of work until at least 70.

Training on new technology is needed so frequently that all staff will benefit from it and there is no disadvantage to a business in providing training to older employees.

Performance management

Appraisals should be conducted without reference to age and goals should be set as they would be for any other employee. Questions about retirement should not be asked, although it is acceptable to ask an employee of any age about their work plans in the short-, medium- and long-term so that business plans can be made.

If an employee is not performing adequately, they should be allowed to improve their standard of work, with reasonable steps taken to help them.

Retirement

Most employees have the right to decide when they would like to retire. An employer should not assume that someone will retire at a certain age, or suggest that they retire or try and persuade them to retire.

The need for redundancies must be genuine and the selection process must be fair. For more information about making workers redundant, see our article, Avoiding claims when making redundancies.

What to do if you experience ageism in the workplace as an employee

Ageism has not been given the same attention as other forms of discrimination and for too long employees have been expected to ignore it and simply carry on. However, it is both illegal and the most widespread form of discrimination. By bringing it to the attention of employers, workers can help to bring about a change in culture as well as enforcing their own right not to be treated unfairly.

If you have experienced discrimination on the grounds of your age, you should initially raise the matter with your line manager to see if the matter can be resolved. If it is not, then you should bring a formal grievance, using your employer’s internal grievance procedure. Your employer should then hold a meeting with you to discuss the issue and try to reach an acceptable solution.

If the matter remains ongoing, then you are advised to seek legal advice about bringing a claim.

If you have been dismissed and you believe it was unfair or that you have been discriminated against, you can bring a claim at an employment tribunal. This should be done without delay as there are deadlines for starting legal action.

It is compulsory to go through the Acas early conciliation system to try and resolve matters before the application is made. We can assist you with this and with putting any tribunal application together to ensure you have the best possible case.

What can employers do to avoid allegations of age discrimination in the workplace?

Employers should ensure that their recruitment policy and the phrasing of any job adverts applies to all ages and does not contain any bias. Words such as ‘energetic’ could be discriminatory. Instead, you could simply describe the available role.

Instead of asking candidates to include all of their work history, you could ask more specific questions, such as whether they have worked in a particular specialist area. Generally, asking for unnecessary information should be avoided. If a candidate is required to provide their age, then there is a risk they could later claim that they were discriminated against because of it.

Where possible, a business should aim for diversity in employee ages, selecting candidates on the basis of their qualifications and experience and not on whether they are a similar age or will ‘fit in’ with existing workers.

Training opportunities should not be restricted to exclude older workers.

A diversity policy that includes reference to age is recommended. While many businesses have a diversity and inclusion strategy in place, only a small percentage include age. The policy should also explain how an employee can report an issue or raise a grievance.

Employees should be aware that the policy exists and that they will be disciplined for age-related harassment. Training can help the whole firm understand the issue and make them aware of what is unacceptable, such as stereotyping, just as awareness exists of racial stereotyping.

The management team need to understand the importance of preventing ageism and be prepared to step in to address it where necessary.

Contact Springhouse Employment Solicitors

If you have experienced ageism in the workplace or you are an employer who needs advice, our experienced employment solicitors will be happy to help. Contact us today by ringing 0800 048 5888 or fill in our contact form. Our team is ready to give you clear, accurate advice.