Age Discrimination: Guide for Employers

Age discrimination, also known as ageism, is one of the most common forms of unfair treatment at work.

Age discrimination is often associated with bias against older employees, but younger workers can also face discrimination based on their age. For older workers, discrimination might include being overlooked for promotions, excluded from training opportunities, or facing assumptions that they are less adaptable to new technology or nearing retirement, while younger workers might encounter stereotypes that they lack experience, maturity, or commitment, leading to unfair treatment in hiring, pay, or career progression.

For employers, discriminating against an employee because of age can have serious practical and legal implications for your organisation, even where the discriminatory practice or conduct is unintentional.

In this guide, we explain what age discrimination is, how to recognise it in the workplace and how to take preventative steps to avoid behaviour, conduct or policies that have a discriminatory effect.

 

Section A: What is Age Discrimination?

 

Under the Equality Act 2010, age is specified as one of the nine protected characteristics. Age discrimination refers to treating someone unfairly because of age which, under the provisions of the Act, is unlawful except in limited circumstances.

By law, an employer is under a duty not to directly or indirectly discriminate against an employee or job applicant by reason of their age, either by treating them less favourably or by putting them at a disadvantage. They are also under a duty not to harass or victimise someone for a reason connected to their age.

In turn, the employee or prospective employee is protected from unfair treatment because of how old they are or, in some cases, how old they are thought to be or the age of someone they are associated with.

There is no minimum length of employment required for an employee to be protected against age discrimination, and in fact, the Act also protects job applicants before any employment commences. This means it is potentially unlawful to discriminate against someone from the point a job role is advertised through to the last day of employment and even beyond, including when giving references.

As such, the law protects individuals form age discrimination throughout the employment lifecycle, from recruitment, in relation to pay or other terms and conditions, training and promotion and performance management through to termination of employment and retirement.

If you treat a job applicant or employee less favourably, or subject them to a disadvantage by reason of their age, you may find yourself facing a complaint before the employment tribunal for unlawful discrimination under the 2010 Act.

Where you have dismissed or made someone redundant for a reason connected with their age, you may also be subject to a claim for unfair dismissal. In either case this can result in an award of compensation being made against you. You may also be ordered to reinstate an employee that you have dismissed.

The practical and legal consequences for your business can be significant in cases of age discrimination and expert legal advice should always be sought.

 

Section B: Types of Age Discrimination

 

There are four main types of age discrimination under the 2010 Act: direct discrimination, indirect discrimination, harassment and victimisation.

 

1. Direct age discrimination

 

Direct age discrimination could occur where someone is considered too old or young for a role, although it is not always about a young person being preferred over an elderly person, or vice versa. People of all ages can be affected, where the age difference involved, or perceived age difference, can sometimes be small.

Direct age discrimination typically presents in the following ways:

 

a. Ordinary direct discrimination: treating someone of a different age or in a different age group less favourably than another job applicant or employee.

b. Discrimination by perception: treating someone thought to be a particular age less favourably, regardless of whether or not this perception is correct.

c. Discrimination by association: treating someone associated with someone belonging to a particular age group, such as a member of their family or a colleague, less favourably.

 

2. Indirect age discrimination

 

Indirect age discrimination is where a provision, criterion or practice puts, or would put, other employees or job applicants of the same age or age group at a disproportionate disadvantage when compared to others who don’t share that same protected characteristic, ie; where they are of a different age or age group.

The individual employee or job applicant must then show that they have been disadvantaged by the application of the provision, criterion or practice.

Indirect discrimination is usually less obvious than direct discrimination and is normally unintended. It can apply to any policies, procedures, requirements, rules and arrangements in the workplace, for example, offering a training course only to recent graduates, potentially discriminating against older employees.

 

3. Harassment by reason of age

 

Harassment by reason of age is unwanted conduct in the workplace that has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. This can be because of the employee’s age, the age they are thought to be, or the age of someone else they are associated with.

This can include bullying, threats, insults, nicknames, gossip, unwanted jokes, intrusive or inappropriate questions and comments, or even excluding an employee from professional or social engagements because of their age.

Harassment can be by way of written, verbal or physical conduct. It can also include where an employee is not on the receiving end of the conduct, but this still has negative impact on their dignity at work or working environment.

To constitute harassment, the focus falls on how the victim perceives or feels about the unwanted conduct, and whether it was reasonable to react that way, rather than whether any harm or negative impact was intended. It is rarely an excuse to say something is innocent banter if the victim takes offence.

 

4. Victimisation by reason of age

 

Victimisation by reason of age is when an employee suffers a detriment, ie; something that causes disadvantage, damage, harm or loss because they have made an allegation of age discrimination, or supported someone in a complaint of age discrimination, or because they gave evidence relating to a complaint about age discrimination or they raised a grievance about or bringing a claim for age discrimination.

An employee is also protected from victimisation if they suffer a detriment because they are suspected of doing or believed they may do any of the above, for example, where someone is passed over for promotion that they would otherwise have been given, having been suspected of being a ‘troublemaker’.

 

Section C: Recognising Age Discrimination

 

Recognising age discrimination in the workplace is crucial for fostering an inclusive environment where all employees feel valued, regardless of their age. Age discrimination can manifest in various forms, often in subtle or indirect ways that may not be immediately apparent. Understanding these manifestations is the first step in identifying and addressing age bias.

One example of age discrimination occurs during the recruitment process, where older or younger candidates may be overlooked in favour of those perceived to be within an “ideal” age range. This can happen even when age is not explicitly mentioned, with phrases like “energetic” or “dynamic” sometimes used as code words to suggest a preference for younger candidates. Similarly, assumptions about older employees being less adaptable to new technology or younger employees lacking experience can influence hiring and promotion decisions unfairly.

Within the workplace, age discrimination might be evident in how opportunities for advancement or training are distributed. For instance, older employees may be passed over for promotions or professional development opportunities due to a belief that they are close to retirement and thus not a long-term investment. On the other hand, younger employees might be denied these opportunities under the assumption that they need to “prove themselves” before being considered for advancement. Such practices not only discriminate but also undermine morale and productivity within the organisation.

Signs of age bias can also be seen in day-to-day interactions and workplace culture. For example, an older employee might experience exclusion from social activities or informal networks within the company, which can impact their sense of belonging and professional development. Additionally, younger employees might face dismissive attitudes towards their ideas or contributions, based on the assumption that they lack the necessary experience or maturity. These biases, whether overt or subtle, contribute to a toxic work environment where employees feel undervalued and discriminated against.

Recognising these examples and signs of age discrimination is vital for employers who wish to cultivate a fair and equitable workplace. Addressing age bias not only helps to comply with legal obligations under the Equality Act 2010 but also enhances the overall health of the organisation by ensuring that all employees have equal opportunities to succeed and contribute, regardless of their age.

 

Section D: Is Age Discrimination Ever Lawful?

 

In very limited circumstances, different treatment because of age can be lawful, for example, where you can prove the need for a certain type of discrimination.

This includes where the direct or indirect age discrimination can be objectively justified as a proportionate means of achieving a legitimate aim, although an employer can never justify harassment or victimisation. Further, objective justification should only be a defence in limited circumstances, and does not mean you have free reign to discriminate against workers because of their age.

You may also be able to take positive action to support applicants or employees of a particular age or age group, if you can show reasonable evidence that they are at a disadvantage, are under-represented in your company or organisation, or have other specific needs because of their age. That said, any positive action must be proportionate and not discriminate against others, where positive discrimination under the Equality Act is unlawful.

Other exceptions where different treatment because of age is allowed include strict occupational requirements, payment of the national minimum wage and statutory redundancy pay where the amount is linked to an employee’s age, and pay and extra job benefits linked to time with the employer up to 5 years.

 

Section E: Preventing Age Discrimination

 

By recognising the key areas where age discrimination can often arise in the workplace, employers can put in place policies and practices to ensure individuals are not discriminated against by reason of their age.

 

1. Recruitment

 

Employers must not to discriminate against job applicants because of age at any stage of the recruitment process, from the initial job description through to the eventual job offer letter.

When advertising a role, set out the type of experience needed for a role rather than ask for a certain number of years’ experience. Unless a specific qualification is essential to the role, applicants should be given the option to demonstrate equivalent qualifications or skills and knowledge from work experience.

You should also avoid wording that suggests an applicant of a particular age group would be best suited to the job, for example, ‘fit and enthusiastic’, which would tend to discriminate against older applicants.

When interviewing prospective candidates and deciding who to hire, you should be careful not to stereotype someone because of their age. Making age-based assumptions about what an applicant is capable of or how they will behave is one of the most likely causes of age discrimination.

 

2. Training & promotion

 

You must not allow any unconscious bias or stereotypical thinking to creep into your decision-making about who gets trained or promoted. It is very easy to make assumptions about an employee’s needs or ambitions based on their age, length of experience or length of service with you.

It is a common myth that there is more value in training younger staff and no or little value in training older employees who are often wrongly assumed to be more difficult to train or less likely to want to progress. You should never seek to discourage any employee with the necessary skills, knowledge and experience from applying for a more challenging job, regardless of their age.

 

3. Pay or other terms & conditions

 

Generally, you must not have different terms and conditions of employment because of an employee’s age, perceived age or the age of someone they are associated with. There are only limited circumstances in which different treatment because of age can or may be lawful, for example, payment of the national minimum wage or redundancy pay which are linked to age groups.

The law also allows the improvement of pay and job benefits for service of up to 5 years. Otherwise, you should usually base an employee’s pay and perks, such as health insurance and additional holiday, on their job and skills and not how old they are, unless you can objectively justify this for more than 5 years’ service.

 

4. Performance management

 

You should always approach an employee’s appraisal without preconceptions or bias concerning their age. You should also treat employees consistently and fairly when assessing their performance and setting future goals.

You do not need to ignore under-performance simply because an employee is younger or older than other staff, although you must give them a fair chance to reach and maintain an acceptable standard, no matter what their age.

 

5. Workplace ‘banter’

 

Derogatory and abusive comments relating to age, an employee’s perceived age or the age of someone they are associated with, is one of the most common causes of harassment in the workplace. Yet ageist language at work is often overlooked or downplayed as innocent banter.

Examples of ageist language might include a younger employee telling an older colleague they are ‘an old timer’ or ‘over the hill’, or an older employee saying to a young colleague, ‘they are still wet behind the ears’.

You can be held liable for your own use of ageist language or conduct, as well as for an employee’s, unless you can show that you took all reasonable steps to try to prevent them.

This means that even where something has been intended as a joke, if this has caused offence you should still address the matter directly with the perpetrator, explaining the effects of their conduct. Where ageist comments have been used deliberately or maliciously, to embarrass and humiliate, you may want to address the matter by way of formal disciplinary proceedings.

 

6. Dismissal

 

When dismissing an employee you must again have a fair reason and adopt a fair process, and not because they are thought to be too young or too old, or because of an ageist culture in the workplace.

When making redundancies, decisions should be based on factors such as skills, performance and abilities essential to the future of the re-structured business. You must not base a decision on the age of an employee, or put pressure on older employees to take voluntary redundancy or early retirement.

You should also only apply a ‘last in first out’ selection criteria, which has the potential to discriminate against younger workers with less service, when used in conjunction with other criteria, or to decide a tiebreaker.

 

7. Retirement

 

In the UK, there is no longer a fixed retirement age for most jobs; it must be left to the individual to decide when they want to retire.

You can ask an employee about their short and long-term plans to help you plan for the future needs of your organisation, but you must not raise or prompt a discussion about any possibility of the employee retiring. You must also be careful not to pressurise or bully an employee into retiring.

Should an employee raise the subject of their retirement plans, you should be supportive and accommodating to facilitate their decision. This could include options such as flexible working or phased retirement to support the individual with the transition and to allow to you to make necessary workforce or resourcing decisions to avoid operational disruption.

 

Section F: How to Handle Age Discrimination Complaints

 

Addressing and resolving complaints related to age discrimination is a critical responsibility for employers. When an employee raises a complaint, it is essential to take it seriously and respond promptly to ensure the issue does not escalate. A structured approach begins with acknowledging the complaint in a timely manner, followed by a thorough investigation. This helps to demonstrate that the organisation is committed to maintaining a fair and inclusive workplace.

Internal investigations should be conducted with the utmost care and confidentiality. It is important to appoint an impartial investigator, ideally someone with experience in handling discrimination issues, who can assess the situation objectively. The investigator should gather all relevant evidence, including statements from the complainant, the accused, and any witnesses. Maintaining a neutral and non-confrontational tone throughout the investigation process is crucial to avoid exacerbating tensions and to ensure all parties feel heard and respected.

Upon conclusion of the investigation, a detailed report should be prepared, outlining the findings and providing recommendations for action. Depending on the outcome, this could range from implementing training programmes to improve awareness, revising company policies, or taking disciplinary action against those found to have engaged in discriminatory behaviour. The complainant should be informed of the outcome and any steps the organisation plans to take, reinforcing the employer’s commitment to addressing the issue.

If the situation progresses to a formal claim, perhaps because the complainant is dissatisfied with the internal handling or resolution, it is vital to manage the legal proceedings carefully. Engaging with legal counsel early in the process can help navigate the complexities of employment law and ensure the organisation is adequately prepared. The employer may be required to provide evidence gathered during the internal investigation and demonstrate that all reasonable steps were taken to prevent and address discrimination.

Throughout this process, it is important to maintain open lines of communication with the employee involved, offering support and addressing any concerns they may have. Handling complaints and claims effectively not only helps to resolve the immediate issue but also contributes to a positive workplace culture where employees feel valued and protected from discrimination.

 

Section G: Summary

 

Age discrimination refers to the unfair treatment of individuals based on their age. It is classed as unlawful in the UK under the provisions of the Equality Act 2010. Discrimination can occur in various forms, including direct discrimination, where an employee is treated less favourably due to their age, and indirect discrimination, where policies or practices disproportionately disadvantage certain age groups. Harassment and victimisation related to age are also prohibited under the law.

It is essential for employers to foster an inclusive workplace culture where employees of all ages feel valued and respected. Regular training on age discrimination and diversity, clear policies, and consistent monitoring of workplace practices can help prevent discriminatory behaviour and avoid potential legal action and damage to reputation.

 

Section H: Need Assistance?

 

DavidsonMorris’ employment lawyers can help with all aspects of workplace discrimination, from guidance on how to minimise the legal risk of age discrimination and how to deal with specific complaints. Working closely with our specialists in HR, we can offer a full support service from staff training, through to developing an organisational policy to defending any claims that may arise. For help and advice, speak to our experts.

 

Section I: Age Discrimination FAQs

 

What are examples of age discrimination?

Age discrimination can be either direct or indirect because of the age of a job applicant or employee, or even their perceived age or the age of someone they are associated with. This could involve, for example, a decision not to recruit someone because they are too young or too old, or look too young or too old.

 

What is the Age Discrimination Act 2006?

The Employment Equality (Age) Regulations 2006, now superseded by the Equality Act 2010, prohibited employers from discriminating against employees on grounds of age. Under the 2010 Act it remains unlawful to discriminate, harass or victimise applicants or employees on the grounds of age, young or old.

 

What constitutes age discrimination in the workplace?

Age discrimination occurs when an employee or job applicant is treated unfairly because of their age. This can include direct discrimination, such as not hiring someone because they are perceived as too old or too young, or indirect discrimination, such as company policies that disadvantage people of a certain age group.

 

Is it illegal to ask for an applicant’s age during recruitment?

It is generally considered discriminatory to ask for an applicant’s age during the recruitment process unless there is a valid reason related to the job. Employers should avoid asking for age-related information, including date of birth, unless it is necessary for the job role.

 

Can an employer enforce a mandatory retirement age?

Employers can only enforce a mandatory retirement age if they can objectively justify it, meaning they must provide a valid, non-discriminatory reason for requiring employees to retire at a certain age. Without such justification, mandatory retirement could be considered age discrimination.

 

What should an employer do if an employee raises an age discrimination complaint?

Employers should take any complaint of age discrimination seriously and address it promptly. The first step is usually to conduct an internal investigation, ensuring confidentiality and impartiality. Depending on the findings, appropriate action should be taken to resolve the issue, which may include revising policies, offering training, or, in some cases, mediation.

 

Are there any exceptions to age discrimination laws in the UK?

Yes, there are certain exceptions to age discrimination laws. For example, age limits can be imposed in situations where it is necessary for public safety, such as in certain roles within the police or fire services. Additionally, age-based benefits, like a concessionary bus pass, may be allowed if they are intended to support older individuals.

 

How can an employer create an age-inclusive workplace?

To create an age-inclusive workplace, employers should implement fair recruitment practices, provide ongoing training on diversity and inclusion, promote flexible working options, and ensure that all employees have equal opportunities for advancement and development, regardless of age.

 

What are the potential consequences of age discrimination for employers?

Employers who are found guilty of age discrimination can face significant consequences, including legal action, financial penalties, and damage to their reputation. It can also lead to a demotivated workforce and lower employee retention, negatively impacting overall business performance.

 

Section J: Glossary

 

 

Term	Definition
Age Discrimination	Unfair treatment of an individual based on their age, which may occur in various forms such as direct, indirect, harassment, or victimisation.
Equality Act 2010	A key piece of legislation in the UK that protects individuals from discrimination based on protected characteristics, including age, in the workplace and other areas.
Direct Discrimination	Occurs when someone is treated less favourably specifically because of their age, such as not being hired due to being perceived as too old or too young.
Indirect Discrimination	Happens when a policy, practice, or rule that applies to everyone disproportionately disadvantages people of a particular age group.
Harassment	Unwanted conduct related to a person’s age that has the purpose or effect of violating their dignity or creating an intimidating, hostile, or offensive environment.
Victimisation	Treating someone unfairly because they have made or supported a complaint of age discrimination, or are suspected of doing so.
Objective Justification	A legal defence for employers where they must show that their actions, which may otherwise be discriminatory, were a proportionate means of achieving a legitimate aim.
Reasonable Adjustments	Modifications or changes made in the workplace to accommodate employees, particularly those affected by age-related issues or conditions.
Retirement Age	The age at which an employee may choose or be required to stop working. In the UK, there is no default retirement age, but specific roles may justify one if objectively justified.
Protected Characteristics	Traits that are legally protected from discrimination under the Equality Act 2010, including age, gender, race, disability, and others.
Constructive Dismissal	When an employee resigns due to their employer’s conduct, which has made their continued employment untenable, potentially linked to discriminatory practices.
Flexible Working	Work arrangements that allow employees to vary their working hours or location, helping them balance work and personal commitments, often benefiting employees of all ages.
Positive Action	Measures taken by an employer to encourage or train individuals from a particular age group or other protected characteristics to overcome disadvantages.
Mandatory Retirement	A compulsory retirement age set by an employer, which must be legally justified under the Equality Act 2010 to avoid being considered discriminatory.
Tribunal	A legal forum in the UK where employment disputes, including those involving age discrimination, are resolved.
Redundancy	The process of dismissing an employee because their role is no longer required. Redundancy must be handled fairly and without discrimination.
Mediation	A voluntary process involving a neutral third party to help resolve disputes between an employer and employee, often used in cases of discrimination complaints.
ACAS	The Advisory, Conciliation and Arbitration Service, an independent UK organisation providing free and impartial advice on workplace rights, including discrimination issues.

 

 

Section K: Additional Resources

 

ACAS (Advisory, Conciliation and Arbitration Service)
https://www.acas.org.uk/age-discrimination
ACAS provides comprehensive guidance on preventing and addressing age discrimination in the workplace, including practical steps for employers and employees.

 

Equality and Human Rights Commission (EHRC)
https://www.equalityhumanrights.com/en/advice-and-guidance/age-discrimination
The EHRC offers detailed information on age discrimination, legal responsibilities under the Equality Act 2010, and resources for understanding and preventing age bias.

 

GOV.UK – Discrimination: Your Rights
https://www.gov.uk/discrimination-your-rights/types-of-discrimination
This official government resource outlines the different types of discrimination, including age discrimination, and provides an overview of your rights and employer obligations under UK law.

 

CIPD (Chartered Institute of Personnel and Development)
https://www.cipd.co.uk/knowledge/fundamentals/relations/diversity/age
The CIPD provides insights and best practices for promoting age diversity in the workplace, offering resources on managing an age-diverse workforce and preventing discrimination.

 

Age UK – Discrimination at Work
https://www.ageuk.org.uk/information-advice/work-learning/discrimination-at-work/
Age UK offers advice and support for older workers facing age discrimination, along with resources for employers on creating an age-friendly workplace.

 

Health and Safety Executive (HSE)
https://www.hse.gov.uk/vulnerable-workers/older-workers.htm
The HSE provides guidance on managing health and safety for older workers, with a focus on ensuring that workplace practices are inclusive and non-discriminatory.

 

Business in the Community (BITC)
https://www.bitc.org.uk/toolkit/age-in-the-workplace/
Business in the Community offers a toolkit for employers to help manage age in the workplace, promoting the benefits of an age-diverse workforce and providing strategies to prevent age discrimination.