Age discrimination claims

Age discrimination under the Equality Act 2010

Direct age  discrimination:

Treating a person (B) less favourably (than a person of a different age) because s/he is of a particular age, whether too old or too young (eg 60 or 20) or in a particular age group (eg the over 50s or under 30s) with justification.  Justification means that the treatment must be a  'proportionate means of achieving a legitimate aim'.

Direct age discrimination includes:

• Stereotyping people of a certain age (assuming that 'B' is too old to learn new ways or too young to carry out a particular task or responsibility);
• Making B redundant because of his/her age;
• Treating B less favourably because of the age of B's partner or children;
• Less favourable treatment  because of B's perceived age (treating B less favourably because s/he is thought to be of a particular age, even if they are not or because B looks too old or young).

Note there is presently an exception which allows employers to retire employees (not other categories of workers) at age 65 but this will be removed in 2011 and there will be no compulsory retirement age.  An employer will still be able to lawfully retire someone against their will but only if there are very good reasons.

The question to ask is whether B (employee, partner, contract worker etc) has been treated less favourably because of her or his age.  To prove this you will need to show that other people in a similar situation but of a different age were treated more favourably than B.

The Leigh Day employment team is acting for Miriam O'Reilly who is arguing that she was removed from the BBC Countryfile programme (along with three other women in their 40s and 50s) and replaced by younger presenters, the reason being that she is a woman in her 50s. This is, we argue, sex and age discrimination.

For harassment see section on harassment in employment.

Indirect discrimination: this occurs where a worker of a particular age is disadvantaged because of a provision, criterion or practice (the PCP), which applies to people of all ages, but particularly disadvantages those of B's age or age group, compared to those in a different age group.   This will be unlawful unless the PCP is a 'proportionate means of achieving a legitimate aim'.

• Requiring a minimum number of years experience for a job, where this is not necessary; this may disadvantage younger applicants;
• Preference for recent graduates where this is not necessary for the job;
• Redundancy criteria which disadvantage particular age groups, such as length of service, particularly where it is the only criteria;
   

Victimisation:

It is unlawful to treat a worker unfavourably because s/he has complained of age discrimination, brought a claim or has been a witness for a complainant. For example, it would be victimisation to make an employee redundant because she had raised issues of age discrimination.

Exceptions

There are number of exceptions, including:

• The retirement age of 65 (to be removed),
• Genuine occupational requirement, e.g. hiring of actors,
• Service related benefits, such as redundancy pay,
• Minimum pay rates applicable to younger workers.

For who is protected and who is liable see Overview.

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