ACAS has published new guidance for employers and HR professionals on workplace age discrimination this week.
The guidance offers tips on preventing age discrimination in the workplace and best practice methods of dealing with situations involving age discrimination should it occur in order to minimise the risk to employers of facing a claim and possible compensation payout at an Employment Tribunal.
Workplace Age Discrimination
Age is one of the “protected characteristics” covered by the Equality Act 2010 (EqA). The EqA protects both job applicants and those “in employment” from being discriminated against, harassed or victimised on grounds of age. Broadly speaking, it is unlawful for an employer to:
- Treat a job applicant or employee less favourably because of age without objective justification;
- Apply a provision, criterion or practice that disadvantages job applicants or employees of a particular age group without objective justification;
- Subject a job applicant or employee to harassment related to age; and
- Victimise a job applicant or employee because they intend to or have made an age discrimination complaint.
The “objective justification” defence is limited, and to succeed an employer must prove that its actions or the provision, criterion or practice was a proportionate means of achieving a legitimate aim. Legitimate aims could include rewarding experience and service, sharing out opportunities fairly between generations or creating a balanced workforce.
However, following the recent cases of Lord Chancellor and another v McCloud and others and Secretary of State for the Home Department and others v Sargeant and others [2018], employers should ensure they have suitable evidence to support any alleged legitimate aims and the methods used to achieve them.
Areas where workplace age discrimination can arise, include:
- Recruitment – employers should avoid using age in recruitment criteria and check that their advertisements and procedures do not use language that either overtly or implicitly has the effect of excluding persons of a certain age/age range. For example, references to “mature” should be amended to “experienced”.
- Promotion and training – employers should avoid giving preferential treatment to an individual on the grounds of their age.
- Pay – whilst employers are entitled to pay different rates to workers of certain ages in line with the national minimum wage age bands, any pay scale that uses length of service as a criterion for progression should be avoided. However, the improvement of pay for service up to five years will be permitted.
- Benefits – benefits should be based on the individual’s job and skills. Benefits (including benefits payable on termination) which depend on a qualifying period of employment or service in a role at a particular level could be discriminatory. However, as with pay scales, the improvement of benefits for service up to five years is permissible.
- Redundancy – employers should not base any selection criteria on age. Any redundancy pay schemes must be the same or very similar to the statutory age bands and multipliers for statutory redundancy pay.
- Retirement – there is no longer a default retirement age in law. Employers should avoid pushing individuals towards retirement once they reach a particular age.
Comment
Employers are advised to review their employment documentation, such as recruitment materials, contracts and procedures, to ensure that these do not disadvantage employees of a certain age. Employers should ensure their HR team and managers are trained in age discrimination law and how to avoid falling foul of this and consider auditing their current workforce age profile and addressing any imbalances.
Whilst workplace age discrimination is often unintentional, Employment Tribunals have the power to award unlimited compensation in successful claims.
How Nelsons Can Help
For further information or to comment on this article, please contact a member of our expert Employment Law team in Derby, Leicester or Nottingham on 0800 0241 976 or via our online form.