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What’s Age Got to Do with It? Asks Employment Solicitor

By National Practice Group Leader, Employment and Partnership

New research Slater and Gordon conducted into the experiences of over-40s in the workplace shows they believe their age is often a factor in decisions made about them at work, sometimes to their detriment. 

This is no surprise to me as an Employment Solicitor advising senior executives, professionals and company directors, the vast majority of whom are over the age of 40.

What is surprising is that 60% of those surveyed were unaware that detrimental treatment because of age could be unlawful and give rise to a claim for age discrimination against their employer. This is worrying as it indicates that employers are not educating their staff on the issue and employees believe they have to put up with treatment that is not only unlawful but also unacceptable in a modern workplace.  

According to our survey, 54 is the age at which people believe their age really starts to have a negative impact on their career. Employees who are dismissed around that age face a double-whammy because it’s also more difficult to find a comparable new role. Many of my clients over the age of 55 have told me that they will never find another full-time permanent job in their chosen fields, and opt to take on consultancy, part-time or contract roles instead.  

Our research found that older workers face some of the following types of age discrimination, which is in line with our experience as advisers:

  • They are more likely to be selected for redundancy.
  • They are passed over for promotions.
  • Jokes and comments about their age.
  • Exclusion from social events with younger colleagues.
  • Questions about when they plan to retire.
  • Questions about their age at job interview.   

What Protection Does the Law Provide?  

The principle underlying equality law in employment is that each person should be judged on their capacity, performance and ability to do the job, not on irrelevant personal characteristics. Put more simply: What’s age got to do with it?  

The default retirement age of 65 was abolished in 2011 so Government policy supports the idea that employees should be able to work for as long as they wish to do so and are capable of doing so.  

Types of Age Discrimination Prohibited by the Equality Act:

  • Discrimination because of age, unless it can be justified.
  • A policy or practice which puts people of a certain age at a substantial disadvantage compared to those of a different age; unless it can be justified.
  • Justification in both cases involves the employer showing it has a legitimate aim and that the act or policy is a proportionate means of achieving that aim.
  • Harassment related to age. This could include jokes, comments, bullying, exclusion or side-lining.
  • Detrimental treatment or dismissal because of raising a complaint about age discrimination, which is known as Victimisation. 

What You Can Do about Age Discrimination at Work?

  • It’s usually sensible to raise concerns informally with your line manager or HR in the first instance. 
  • If this is not possible or does not provide a resolution, you could submit a formal grievance.  Check out your employer’s grievance policy and see if they have a diversity or dignity at work policy which includes a policy on age discrimination. 
  • Keep any documents relevant to the discrimination and keep a diary of what’s happening so you have a record, which could be important evidence later on.
  • If you cannot resolve the issue through your employer’s internal processes, you could seek specialist legal advice from an Employment Solicitor and consider submitting a claim to the Employment Tribunal. 
  • Remember that Employment Tribunal time limits are short and strict. You usually need to bring a claim within 3 months less one day of the act you are complaining about, so if things are moving in that direction, get legal advice promptly.  

Please contact us if you require any further advice regarding age discrimination issues. Call freephone 0800 916 9060 or contact us online and we'll be happy to help.