Age discrimination – is it on the rise?

Recently, the Guardian published an article stating that age discrimination claims have increased by 74% over the last year in England and Wales, with a 176% rise between October and December 2020 compared with the same period in 2019. Further, they quoted a senior programme manager at the Centre for Ageing Better as saying that “our recent research with employers finds that while many said diversity and inclusion were important to them, few had strategies or approaches to make their workplaces age inclusive.”

With a demonstrable rise in age discrimination claims, we felt it was important to comment on these types of claims, what they might cost employers, and therefore how best to avoid them. It is worth considering the protection under the Equality Act 2010, and the types of claims that can be made.

Equality Act 2010

Age is one of the protected characteristics under the Equality Act 2010 and as a result, an employee is protected against discrimination because of their age. There are four main types of age discrimination:

1. Direct discrimination (where someone is treated less favourably than others because of their age)
2. Indirect discrimination (where a provision, criterion or practice puts someone at a disadvantage because of their age without objective justification)
3. Harassment (unwanted conduct relating to age that creates an unwelcome work environment or has the effect of violating a person’s dignity)
4. Victimisation (where an employee suffers a detriment as a result of raising/supporting a complaint on discrimination)

It should also be remembered that generally the most obvious forms of age discrimination will affect older people, the protection applies in relation to inequality of treatment with regard to any age. Accordingly, the possibility of discrimination against younger generations bears equal relevance.

There are circumstances when age discrimination can be lawful, but these exceptions are fact-dependent and have to be carefully considered.

The cost of discrimination

So what happens if you are found to be unlawfully discriminating an employee due to their age? Awards for discrimination claims are uncapped, this means that Employment Tribunals can award full compensation for the loss suffered. The highest award given by an Employment Tribunal for age discrimination in the year 2019/2020 was £243,636, with the average award in the region of £39,000.

Given the potential financial and reputational damage in a finding of age discrimination, then it is essential that employers put in place appropriate protection. As with other aspects of discrimination, a key aspect of such protection is to put in place appropriate policies and training, ensuring that they are communicated effectively to all employees.

Get in touch

For tailored advice on how to avoid age discrimination, or any other employment related matter that could affect your business, our team of specialist employment lawyers can assist.

• Glasgow: 0141 673 0126
• Edinburgh: 0131 381 0200
• Inverness & Highlands: 01463 217227
• Elgin: 01343 614308
• Shetland: 01595 720697