It’s against the law to discriminate against an employee on the grounds of their age.
If you as an employer have directly discriminated against somebody on the grounds of their age or have a practice that puts an employee at a disadvantage because of their age, you could be facing a claim for age discrimination.
What is age discrimination?
Age discrimination falls into two categories, direct and indirect. It’s worth defining these since not everybody understands the difference.
Direct discrimination – where an employee receives less favourable treatment than another employee on the grounds of their age.
Indirect discrimination – where a provision, criterion or practice is applied throughout the workplace but puts workers of a particular age range or group at a disadvantage compared to their fellow employees.
If a person thinks that they’ve been affected by age discrimination and wants to bring a claim, they need to show that they have been treated less favourably than a ‘comparator’. This means a person in either the same position as the would-be claimant or a very similar one.
This requirement means that employers are protected from unrealistic claims; junior staff can’t use senior staff as comparators and thus a better pension could be offered to those in more senior positions.
How to avoid a claim: test your policies
So what can employers do to ensure that they don’t find themselves on the receiving end of age discrimination claims?
There are several steps that can be taken to reduce the risk:
Take a look at all the documentation used when dealing with employees. This should include:
Pension scheme rules
Employment contracts (pension terms)
Communication with members
Check to see if any of them use any language or contain any provisions that could be considered discriminatory. If in doubt, get professional advice on what could count as discrimination. It’s better to take a little bit more time to get it right than risk a potentially very expensive Tribunal claim.
Look at any discriminatory practices and provisions used in the business and examine them to see whether they are included in any of the exemptions to the Equality Act.
For a full list of the exemptions, see Schedule 1 of the Equality Age Exceptions.
Check to see whether the business operates any provisions, criteria or practices that could be considered discriminatory. Then think about whether they can be objectively justified.
This happens when the provision, criterion or practice can be defended as a “proportionate means of achieving a legitimate aim”.
Examples of a legitimate aim include:
health and safety,
welfare of individuals, either workers, visitors or members of the public,
running a business efficiently,
requirements for the business to continue trading.
If an employer can prove that the provision, criterion or practice is objectively justified, then they will not be breaking the law in using it.
It is well worth keeping written records of the decisions and reasoning behind the objective justification so that in the event of a claim, proof can be swiftly presented to explain why the discrimination occurred.
What’s meant by ‘proportionate’?
When the claim is made, the Tribunal will look at the intended aim of the discrimination and weigh that against the disadvantage to the claimant. In order for it to be decided that the means are proportionate, the former needs to outweigh the latter. The employer will need to show that their actions are “appropriate” and “necessary”.
If the claimant can show that there are better and less discriminatory ways of going about achieving the aim, this will count in their favour with the Tribunal.
An employer can’t use purely cost reasons to justify age discrimination. However, if the issue of cost is part of a larger justification, then a Tribunal may well take that into account.