10 years of age discrimination law

03 Oct 2016



UK age discrimination law is now 10 years old. The Employment Equality (Age) Regulations 2006 came into force in October 2006. They have since been subsumed into the Equality Act 2010, together with all other anti-discrimination law in force at the time. Subsequently in 2011 the default retirement age was also repealed.

Age is one of the nine protected characteristics covered by the Equality Act. Section 5 broadly defines age as a reference to people of a particular age or people who fall within a particular range of ages or are in the same age group.

It is unlawful to directly or indirectly discriminate against or to harass or victimise a person because of their age. Both workers and employees are protected from less favourable treatment because of their age, as are both younger and older people.

Age discrimination can occur during the recruitment process as well as during employment. A recruiter or employer will only have a defence to an age discrimination claim where they can objectively justify their decision to treat an individual less favourably. For example, simply trying to save costs by employing younger people will not necessarily be an objective justification. Damages in age discrimination claims are uncapped.

Age discrimination cases

There have been a number of age discrimination cases in recent years. One of the most prominent cases, Seldon v Clarkson Wright & Jakes, dealt with the forced retirement of a partner from a law firm. This case reached the Supreme Court which referred the matter back to the Employment Appeal Tribunal, which ultimately concluded that 65 was a justifiable retirement age. It also concluded that implementing a compulsory retirement age for partners in a law firm was a proportionate means of achieving the legitimate aim as it assisted with workforce planning and supported staff retention.

Later cases have found that the use of the nickname “gramps”, together with “old-fashioned” and “long in the tooth” constituted harassment of an older colleague – he was awarded over £63,000 against his employer (Dove v Brown & Newirth Ltd (2016)). Similarly a teenager was successful in her claim for harassment. Her line manager described her as a “kid” and “a stroppy little teenager”, stereotypes relating to her age and therefore discriminatory (Roberts v Cash Zone (Camberley) Ltd and another (2013)).

The national minimum wage, and its latest incarnation, the National Living Wage introduced in April 2016, raise interesting questions about age discrimination by making workers aged 25 and over more expensive. In Greer v Coulter (t/a Alphreso Café) (2011), a claimant succeeded in her ET claim when she was dismissed on reaching the age of 18 as she was entitled to a higher national minimum wage. The judge described the actions of her employer as “callous”.

The age discrimination provisions of the Equality Act stem from an EU directive. We still don’t know whether or how any EU-based legislation will change after Article 50 for Brexit is triggered but we will watch this space.

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