Gould & Swayne Solicitors of Street, Glastonbury and Highbridge, Somerset, UK
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Age Discrimination by Employers
Employees have been protected against discrimination on grounds of race and gender for many years, but the new law also protects employees, and potential employees, from discrimination on grounds of age.
When recruiting new staff, employers may not, for example, give an age limit without proper justification, nor should existing staff be excluded from promotion or training on the grounds of their age without legitimate reason. Teasing in the workplace because of youth or age will have the same consequences as sexual or racial harassment.
Unlike discrimination on grounds of sex or race though, there are circumstances where discrimination on ground of age will not fall foul of the law. For example, where a particular job requires a certain amount of experience in a similar job, this might discriminate against younger applicants who have not had time to get that experience. However the employer’s legitimate requirement for someone with experience would justify that discrimination.
On the other hand, a particular job might involve a certain amount of physical activity. An employer would be justified in not taking on an older employee if there were genuine concerns about Health and Safety.
Some of our staff have been with us for years and get special benefits that the younger ones do not get. Is this age discrimination?
Probably not. Keeping good staff by rewarding loyalty is a legitimate aim which justifies providing benefits for long standing employees, but make it clear to your younger employees that they will be equally rewarded for long service.
We want all of our staff to “fit in”. Most of them are under thirty, so when we advertise we state that we want “young, dynamic people”. We don’t want to take on someone older in case they don’t get on with the others. It’s just business sense.
Advertising for “young” candidates is clearly discrimination on grounds of age. Wanting people who you think will “fit in” is not a legitimate aim which justifies discrimination, just as it would not justify discrimination on grounds of race or gender.
It takes two years to fully train our employees, so there is no point taking on people who are close to retirement age.
Allowing time for training, and time for the fully trained employee to work for long enough to make up for the cost of training, is a legitimate reason for adopting an upper age limit on recruitment. Be realistic though. If training takes two years, and your normal retirement age is 65, then an upper age limit of 61 might be justified, however an age limit of 50 would not be.
As a general rule, do not set age limits for recruitment, training or promotion unless they can be specifically and legitimately justified. If you do not ask for a date of birth or age on application forms, you are less likely to be faced with a claim that a candidate was discriminated against on grounds of age.
Legal advice may vary according to the circumstances of each particular case. Please contact us for advice.