Age discrimination at work: a guide for employees

If you have experienced this kind of discrimination at work, you will need the evidence to back up such allegations.

If you have the evidence, then you will probably be able to negotiate an enhanced exit package or settlement agreement and move on to better things.

If you can’t settle with your employer directly, you will need to consider taking your claim to an employment tribunal.

If you’d like to find out more about discrimination in the workplace, see our guides on discrimination at work and discrimination compensation.

What does age discrimination in the workplace mean?

Age discrimination – sometimes also called ageism – in the workplace means being treated less favourably because of how old you are. It applies to all workers, not just older workers.

 

How common is age discrimination?

However, as the working population ages, this kind of discrimination is becoming increasingly common amongst older workers.  Here are some of the reasons why:

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

‘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 an increased incidence of bias against older workers.

Ageism 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 in the workplace 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 discrimination guide about other types of discrimination in the workplace. In what follows we have applied the above categories to situations where people have been treated unfairly because of their age.

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.

It is, unfortunately, a behaviour that is still surprisingly common in workplace environments.

Example:

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 whether this type of discrimination applies to you, 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’ 

Your employer can objectively justify direct age discrimination. That means they can permit it in some circumstances.

Objective justification is a complicated aspect of employment law that you should at least be aware of and it’s discussed further later on in this guide.

Objective justification can also be difficult for your employer to prove.

To avoid having to do so at a tribunal, your employer will often offer you a settlement and exit package providing you can put forward a good case and negotiate well with the facts at your disposal.

Indirect age discrimination

Indirect age discrimination at work happens when an employer or individual puts rules or arrangements in place that apply to everyone, but those rules result in someone of a certain age being put at an unfair disadvantage.

Example: 

An employer only offers a certain training programme to employees who are within three years of graduating, which 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 more.)

Harassment because of your age

Harassment describes unwanted behaviour linked to your age that violates your dignity or creates a hostile, intimidating or degrading work environment for you.

The unwanted behaviour could be classified as offensive, intimidating or distressing.

Examples:

• Age-related derogatory nicknames (eg. ‘Grandad’), or comments about natural signs of ageing such as wrinkles, grey hair etc.
• An employee experiencing 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 of which have been reported by you), they may be liable for age discrimination.

Victimisation

This is when you are treated unfairly by your employer or an individual acting on behalf of your 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 you 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 ever be justified?

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 to legal argument and this is where the assistance of a specialist employment 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 [in the Equality Act 2010] 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, an employer would have to prove that there was a good reason for the differential treatment or ‘objective justification’ as mentioned earlier.

 

Example of when age discrimination can be justified

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 a ‘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 relating to how old they are 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.

This will strengthen your position when it comes to negotiating a settlement exit package or making a claim at an employment tribunal.

Steps to take when subjected to age discrimination

Throughout the process, and from the moment you suspect that you are being discriminated against, start to gather evidence and make sure to keep as many records as you can of all relevant events.

(See also our guide on keeping records and the section below on proving age discrimination.)

A typical series of steps might look like this

Step 1

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.

Step 2

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. 

There are also plenty of without prejudice letter examples and templates on our website to help you.

Step 3

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 employment lawyer – like the specialists at Monaco Solicitors – to guide you through the official grievance procedure, as it’s really important to get your grievance right.

Step 4

When your employer receives your without prejudice or grievance letter detailing your description of the age discrimination you have faced, they will have to call a meeting.

If you are unsure of how these meetings are conducted you can read about them in our guides on Raising a grievance and on Without prejudice meetings.

Step 5

If you have gathered sufficient evidence to support a claim, 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 unfairly treated because of 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 a claim.

Example:

• 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 passed over because of how old you are, 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 age discrimination in this case

If you wanted to try proving age discrimination in the above case – or in any similar 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 any confidential information which you’re not entitled to take).

(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

A subject access request would require your employer to provide all documents/records, in whatever form, that you are the subject of.

The aim of making the request is that it would reveal some discriminatory exchanges between management about your application (see our guide on making a subject request).

Use a discrimination questionnaire

This would help you to ask your employer questions about possible age discrimination against you.  See our guide on the subject.

Obtain witness evidence

You may be able to 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.

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 their 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 an age discrimination 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).

That’s 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.

See Next Steps below for how to get in touch.

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 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.

 

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.

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. 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 on our website and particularly in the Helpful Guides listed at the end of this article.

 

Next Steps

As there are various routes to go down in a case of age discrimination, with pros and cons for each, it would be beneficial to have a consultation with an experienced employment lawyer.

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 by means of compensation associated with a settlement agreement.

Taking a case to an employment tribunal can be a stressful, expensive and lengthy process, with no guarantee of a positive outcome. We are, however, prepared to represent you if it is the right route for you.

In order to achieve the best possible settlement, we work with you to gather the evidence and arguments needed for your case and to analyse which elements will have the most leverage.

We have been commended on the efficient and dedicated services we provide – and we know that the sooner your case is settled, the sooner you can move on with your life.

Get in touch to find out more about the range of services we can offer:

Contact us:

• Via this website,
• By phone on  020 7717 5259
• By email: communications@monacosolicitors.co.uk