Older workers represent a rising proportion of the UK workforce; however, older workers are finding it harder than other age-groups to find new employment or being overlooked for promotions, often because of workplace discrimination or bias on the part of employers and recruiters.
Steeles Law Employment Solicitor and Partner, Robert Hickford answered questions raised during The Law Society #SolicitorChat session and reviews whether age discrimination is covered under the Equality Act.
Q1. I am in my 40’s and very interested in a job vacancy but have been put off by the job ad stating they are looking for ‘recent graduates’, is this discrimination?
The requirement for recent graduates does not necessarily prevent anyone in their 40’s from applying for a job, as it is possible to be a recent graduate at any age, therefore the company should still consider your application. However, the content of the advert could be made clearer, perhaps using ‘relevant experience’ to avoid miscommunication.
Q2. I believe I have been passed over for promotion because of my age, what can I do?
The best course of action is to raise a grievance with someone in a position of seniority over the person who you believe discriminated against you. Set out why you feel the way you do, detail any relevant conversations or comments that you think indicate potential age discrimination. If there was an interview or assessment for the promotion, request the meeting notes and any feedback. If you do not get anywhere with the grievance but you are convinced that you were discriminated against, contact ACAS for assistance and conciliation.
Q3. What is the difference between direct and indirect age discrimination and how does the Equality Act protect me from this form of discrimination?
Direct age discrimination occurs where, because of age, a person treats another person less favourably than they treat or would treat others. Indirect discrimination relates to a provision, criteria or practice which an employer has and which is applied to everyone in the same way but which also has the effect of disadvantaging a certain age group.
In both cases, the Equality Act prohibits these forms of discrimination, unless the employer can justify the action as a proportionate means of achieving a legitimate aim.
Q4. Colleagues have begun making derogatory jokes about my age, which my line manager brushes off as ‘just banter.’ Could I have a case for harassment?
Yes! Harassment is unwanted conduct related to age which has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It makes no difference if the conduct is considered ‘banter’ by others, if you reasonably believe that it is creating a humiliating environment, it can be considered harassment.
Q5. Can my former employer refuse to give me a reference because I have made a complaint of discrimination under the Equality Act?
No. The employer would be subjecting you to a detriment for asserting your rights under the Equality Act. As a result, you may have a claim for victimisation against the employer and you should contact ACAS straight away.
To discuss updates, advice, and best practice policies for your workplace please contact our employment team using firstname.lastname@example.org or by calling 01603 598000.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.
** Statistic resource: Age discrimination claims rise by 74% during the pandemic