Employment law

Age discrimination claims rise during pandemic

With a rise in age discrimination claims during the COVID-19 pandemic, we take a closer look at why this may be and explore some examples of ageism in the workplace.

22 September 2021

Two senior manager reading a resume during a job interview, Employer interviewing to ask young male job seeker for recruitment talking in office

What is age discrimination?

Age discrimination happens when someone is treated unfairly, based on their age or perceived age. Discrimination can potentially be unlawful if the employer can’t show they had legitimate business interest and that the actions they took were proportionate to achieve the aim.

This form of discrimination is part of the Equality Act. The legislation safeguards the following protected characteristics:

  • Marriage and civil partnership

People of all ages can be discriminated against, and it’s usually a result of biases and age-related stereotypes. The protected characteristic of age means a person belonging to a particular age group. An age group includes people of the same age and people of a particular range of ages. Where people fall in the same age group they share the protected characteristic of age, such as “over 50s”, or “21 year-olds”. There are four types of discrimination at work you may experience:

Direct – when a person is treated less favourably because of a protected characteristic they themselves possess, a protected characteristic someone they’re associated with possesses (e.g., family member, friend, etc.), or a protected characteristic they’re thought to possess.

Indirect – when a process, procedure or rule put in place by an employer, whether formally or informally, disadvantages a group of employees because of a protected characteristic.

Victimisation – when someone treats you badly or puts you at some sort of disadvantage because you complain about discrimination or support a victim of discrimination.

Harassment – unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It’s not a defence to claim it was meant in good humour, as it’s the effect on the individual that matters.

For example, a person over the age of 65 and at state pension age may wish to continue working. In fact, research from our partner 55/Redefined found that over half of employees over the age of 65 want to carry on working, whilst a staggering 65% of employers encourage retirement at age 65 or before, and even resort to redundancy. This could either be direct discrimination or indirect discrimination, depending on whether or not the treatment applies to all employees of the same age.

Another example would be a younger employee finding themselves at the receiving end of a manager’s “jokes” about their age. If these comments are unwanted and make the employee feel intimidated or uncomfortable, then this is an example of harassment. If the employee were to report the behaviour and they were then to be treated unfairly or disadvantaged in some way for doing so, that would also be victimisation.

It’s important to remember that if a person believes that you’re a particular age, and treats you unfairly based on this assumption, then this can still amount to unlawful discrimination - regardless of whether their assumption is correct.

Have cases of age discrimination been impacted by the pandemic?

Cases of age discrimination have increased since the COVID-19 pandemic began. In fact, data from the Ministry of Justice has shown that there were 3,668 complaints of age discrimination made to employment tribunals in 2020, up from 2,112 in 2019: a significant increase of 74%.

As redundancies increased during the pandemic, reaching the highest peak since 1995, research from our partner 55/Redefined found that only 30% of employers were ‘very motivated’ to recruit 55 to 75 year-olds. This increase in redundancies across all age groups at the same time as the tentativeness of employers to recruit employees in this age group has resulted in many people over the age of 55 being disproportionately impacted.

Employers must ensure that they’re making decisions around recruitment, redundancy selection or promotion in an objective way- free from personal opinions or thoughts, or the influence of stereotypes.

What to do if you’re facing age discrimination?

No one should have to face age discrimination. If you’ve been discriminated against, time is of the essence because you only have three months minus one day from the date of the last discriminatory act in which to commence the early conciliation process with the Advisory, Conciliation and Arbitration Service (ACAS).

Early conciliation is a mandatory step before commencing a tribunal claim and gives ACAS a chance to establish whether your employer will agree to settle your case without the need for a tribunal claim. This can take up to six weeks, at the end of which you’ll have at least a further month to prepare your tribunal claim. Where ACAS doesn't succeed in its conciliation attempts, we may then be able to file a claim at an Employment Tribunal on your behalf. We can also assist before and during the conciliation process.

For more information, and to find out how our team of experts can support you with ageism in the workplace, simply call us on 0330 041 5869. Or, if you prefer, you can contact us via our online form or web chat.

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