When people hear the words age discrimination they tend to think of older people, however our employment lawyers have helped many clients who have been discrimated at work due to “being too young” as well as “being too old”. If you feel you are being unfairly treated at work due to your age you are protected under the age discrimination provisions of the Equality Act 2010.
The Equality Act 2010 covers all forms of discrimination in the workplace including recruitment, terms and conditions, promotions, transfers, dismissals and training or any other detremental treatment because of age. This act protects all forms of employees from apprentices to those working under a contract of employment and self-employed who are working under a contract personally to do the work.
Age discrimination can arise in relation to :
- Arrangements made for deciding who should be offered employment such as shortlisting and interviews;
- Terms upon which employment is offered (although there are exceptions relating to some service-related benefits of 5 years or less);
- Refusing or deliberately omitting to offer employment;
- Ways in which access to opportunites for promotion, transfer, training or other benefits, facilities or services are offered.
Direct discrimination means your employer treating you less favourably than someone else due to your age.
Under the Act a person claiming discrimination because of the the particular characteristic of age means a particular age group. In other words, someone bringing a claim on this ground can define the particular age group to which they belong as “21 year olds” or the “under 50s”.
In order to determine if you have been directly discriminated against a comparison has to be made with someone in a different age group where their circumstances are same or not materially different from yours.
The definition is wide enough to cover people who are also discriminated against because they are perceived to be of a particular age group or because they are associated with someone of a particular age group.
Undernoted are some examples of direct discrimination cases:
- Someone who is not promoted because they are under 25;
- Someone who is refused flexible working to look after their mother/father who are over 70 when other workers who do not have elderly parents have been allowed flexible working;
- Someone who is prevented from attending a training session because they are thought to be over 50.
Unlike other forms of direct discrimination, employers can justify direct age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”.
Indirect discrimination can arise if an employer applies a provision, condition or practice (whether formal or informal) which applies or would apply to everyone equally, but which puts or would put those of a particular age group at a disadvantage.
- An employer determines who should be made redundant based solely on employees’ lengths of service. This would disadvantage younger workers who have not had the chance to build up long service
- An employer makes it essential for job applicants to have a new qualification which has only been introduced in the last fie years. This could disadvantage older workers who have not been in education recently.
Like direct discrimination, employers can justify indirect age discrimination if they can show it was “a proportionate means of achieving a legitimate aim”.
Harassment occurs when someone subjects someone else to unwanted conduct related to age that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Harassment also applies to those subjected to unwanted conduct because of another person’s age. For example, if you are subjected to offensive comments about your elderly parents, this is protected under the Equality Act 2010.
Unwanted conduct covers ageist behaviour such as verbal put downs or expressions or assumptions about you as a person, as well as bullying behaviour with no direct ageist content but which is only directed at you because of your age. For instance, if your employer shouts at a younger employee when they would not have shouted at an older colleague.
Proving your case
If you are complaining of discrimination we need to prove that on the balance of probabilities your employer discriminated against you because of your age.
Employment Tribunals are aware that it can be difficult for you to provide clear evidence of discrimination so once we have established facts which a Tribunal can conclude that there has been discrimination then the burden shifts to your employer to show that they did not discriminate against you.
Your claim must be brought within three months less one day of the act of discrimination that you are complaining about. In exceptional circumstances the three month time limit may be extended if a Tribunal believes that it is just and equitable to do so.
Where your discrimination has occurred over a long period of time, this may amount to a continuing act extending over a period. Your claim must be brought within three months less one day of the last act in the series of acts.
Age Discrimination Compensation
Compensation can be awarded for injury to feelings and financial losses, if there are any. There is no formal limit to the amount of compensation which can include loss of earnings (past and future), loss of pension, interest and any other outlays associated you’re your discrimination.
The amount of compensation for injury to feelings can vary enormously. Your age and vulnerability maybe taken into consideration, and also the severity of the discrimination.
You can also ask for compensation for personal injury if you have been seriously affected by the discrimination, particularly in harassment cases which can lead to illness and depression. If so, you will need to produce a medical report to support your claim.
Discrimination Lawyers Scotland
At Thompsons we have a dedicated team of lawyers who are here to help and support you and your family when you need it most. As Scotland’s leading employment firm, we only ever act for employees, never on behalf of employers and our lawyers are best placed in helping you seek the justice you deserve if you are being discriminated at work due to your age.
To discuss your employment issue with our specialist lawyers call 0800 0891 331 or complete our online form.