Age Is a Protected Characteristic
Age discrimination has been unlawful in employment since 2006 and is now protected under the Equality Act 2010. Unlike some protected characteristics, age protection covers workers of all ages -- it is not limited to older workers. A 25-year-old passed over for promotion in favour of older colleagues may have a claim. A 58-year-old dismissed to make way for a younger hire almost certainly does.
The protection covers direct discrimination, indirect discrimination, harassment, and victimisation. Direct age discrimination is treating someone less favourably because of their age. Indirect age discrimination is applying a provision, criterion, or practice that puts people of a particular age at a disadvantage without justification. Both are unlawful unless the employer can show objective justification -- a legitimate aim pursued by proportionate means.
Forced Retirement
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There is no longer a default retirement age in England and Wales. An employer cannot force an employee to retire simply because they have reached a particular age. If your employer has told you that you must retire, or has put you under pressure to retire because of your age, that is age discrimination. There is a narrow exception for objectively justified retirement ages in specific roles -- some pilot licences, for example, have age limits set by regulation -- but this exception is tightly drawn and does not apply to most employment.
Dismissal on grounds of age, or a forced resignation in response to pressure to retire, is both automatic unfair dismissal (if you have two years service) and age discrimination (from day one, uncapped). The compensation for age discrimination is uncapped and includes injury to feelings.
Redundancy and Age
Age discrimination in redundancy selection is common and often subtle. Last in first out selection criteria directly discriminate on grounds of age because length of service correlates with age. Tribunals have found LIFO selection to be indirectly discriminatory. Similarly, any selection criterion that correlates with age -- long-term salary levels, proximity to retirement, pension status -- requires objective justification from the employer.
If you were selected for redundancy and you believe your age was a factor, ask for the selection criteria, your scores, and the scores of employees retained. Compare your situation with younger colleagues who were retained despite similar or lesser performance indicators.
The Comments That Reveal the Real Reason
Age discrimination cases are often won on the comments made by managers and colleagues. "We need fresh blood," "the company needs a new direction," "you are set in your ways," "we need someone who can grow with the business for the next twenty years" -- these phrases, when made in the context of a dismissal or redundancy, are evidence of age as a factor in the decision. Document any such comments immediately, including the date, who said them, and who was present.
What You Can Claim
Compensation for age discrimination is uncapped. It covers lost earnings from the date of dismissal to the hearing, future loss of earnings, injury to feelings (assessed on the Vento scale), and personal injury where psychiatric harm resulted. An employer who dismisses a long-serving employee for age-related reasons faces significant exposure -- the combination of high salary, long notice period, and uncapped compensation can result in very substantial awards.
Contact ACAS at acas.org.uk within three months less one day of the act of discrimination. Start early conciliation today if you believe age was a factor in any adverse treatment.