You can complain if you are treated differently or badly because you are younger or older than someone in a different age group would be treated. An employer won’t admit this outright but it is age discrimination. As for age discrimination examples, maybe they have said they don’t feel you don’t ‘fit in’ with the culture, which is often a code for discrimination. This would be the case with a sales rep who was told they don’t have “Youthful enthusiasm”, or “drive”. Compulsory retirement at 65 is an example of this; it used to be common but now that it is it discriminatory it is rarely seen these days.
Remember that longer-serving employees tend to be older than shorter-serving ones, so treating longer and shorter serving employees differently is a form of age discrimination. There are some limited exceptions where it comes to part of your salary package though.
It is also unlawful to treat you poorly because of something that comes with age, such as the higher salary of a more experienced worker. Making someone redundant to save on pension or changing a health scheme could be examples of this. It is called indirect age discrimination.
You can complain if you have been treated worse than a colleague of a different age group who is in otherwise the same situation as you. This is called direct discrimination. An example would be giving a better life insurance package to older staff.
The legal term for your colleague in the same situation is a comparator. It is often unclear if they are in the same situation as you. If you can’t point to a colleague of a different age group you may be able to show you were treated less favourably than you would have been treated if you had been someone of a different age group. This is called a hypothetical comparator. Some claims fail because there is no appropriate comparator and employment lawyers have a bank of caselaw to rely on for this.
It is unlawful to treat someone less favourably because they associate with people of a particular age group, e.g. because they prefer the company of older people. If you are perceived to have ‘less gravitas’ because of your age, this could lead to discriminatory treatment.
This is when an employer applies a one size fits all policy to everyone, but it has a bigger impact on particular age groups, when there is no fair reason for it. For example, requiring a university degree if the job doesn’t strictly require it. Older people are more likely to be qualified by experience and therefore to suffer from such a policy.
In both cases (direct and indirect discrimination), the employer has a defence if the policy is a necessary step to take; in legal terms, a proportionate means of achieving a legitimate aim. This is called the justification defence and the reason for it must be so compelling that no other, non-discriminatory practice, would do the job. In legal terms, the employer must show that it was “a proportionate means of achieving a legitimate aim”. The rule or treatment must not be any more discriminatory than absolutely necessary to achieve what the employer sets out to do (which must itself be to do with efficiency or health and safety or the particular training requirements of the job). But the onus is on the employer to prove this and it is a complex area of law that trips up many employees.
Harassment can also be the basis for employment tribunal claims. It needn’t amount to workplace bullying as such. It could be behaviour that is unwanted and demeaning. In legal terms, it is unwanted conduct related to age that has the purpose or effect of “violating your dignity” or “creating an intimidating, hostile, degrading, humiliating or offensive environment” – a wide definition.
For example, language such as ‘old fogies’, ‘past it’ and so on. Many birthday cards would be unlawful age discrimination if passed around the workplace. The minimum amount of compensation that an Employment Tribunal is supposed to award is £650. That is the potential cost of a joke that is in poor taste on the ground of age.
If you are dismissed because of something which amounts to or is tainted by age discrimination you are on good grounds to bring an employment tribunal claim, valued in the thousands. A client of ours was hauled into a meeting and asked what her retirement plans were, at the age of 58. She said she had no plans to retire but was asked again days later and the employer tried to persuade her to leave and then made her working life unbearable. She went off work sick, for the first time working there in 20 years and felt unable to return. We secured an employment tribunal payout for her equal to half a year’s salary.
Proving discrimination is not straightforward. You have to prove that it is more likely than not that your employer discriminated against you because of your age but in certain circumstances the law gives you the benefit of the doubt.
It is rare to find evidence of discrimination. Few employers will document or admit it. But if you can show that there’s something fishy about the treatment that may be related to age, it is for the employer to disprove – your case gets the benefit of the doubt and looks much stronger. In legal terms you have to show “facts from which a Tribunal could conclude that there had been discrimination”, at which point the burden shifts to the employer to disprove it. Again, the caselaw helps by setting out circumstances when this has been found to be the case.
What are my time limits?
You must bring a claim within three months (less one day) of what you are complaining about, though this can be extended if there is a good reason. So if you think it is too late, consult advice to find out if this applies.
Where the discrimination takes place over a period of time, this could be a “continuing act” that lets you complain about all of the conduct as long as the last event was in the last three month period.
What is a claim worth?
Your compensation would be based on
- An injury to feelings award is worked out according to the well-known case referred to by the name of Vento.
- You would also be entitled to compensation for loss of earnings if you are forced from your job, just like with an unfair dismissal claim. Typically the employment tribunal works out how long you have been or expect to be out of work and award you your loss of post-tax income for that period, subject to deductions for your own fault and any chance that you would have lost your job for other reasons.