In the context of age diversity, which of the following statements is true of younger workers?

In Great Britain, discrimination on the grounds of age, originally introduced in 2006, is now contained in the Equality Act 2010.

Key points:

• The provisions protect people of all ages in employment regarding recruitment, promotion, reward and recognition, redundancy and vocational training.
• The provisions apply to all employers, providers of vocational training, trade unions, professional associations, employer organisations and trustees and managers of occupational pension schemes.
• Occupational pensions are covered by the provisions, as are employer contributions to personal pensions although, generally, the way in which pension schemes work is not affected.
• The provisions do not affect state pensions.

The Equality and Human Rights Commission (EHRC) has published guidance on age discrimination and the Equality Act, including a Code of practice on employment. Whilst not legally binding, the codes give important guidance on good practice and failing to follow this guidance may be taken into account by tribunals or courts. CIPD members can find out more in our Age discrimination Q&As.

Our Brexit hub has more on what the implications of leaving the EU might be for UK employment law.

Types of discrimination

Within the Equality Act 2010 there are a number of different types of discrimination. These apply to the protected characteristics, which include age.

Direct discrimination

This applies to all protected characteristics. It's treating someone less favourably than another person because of a protected characteristic that they have. For example, it's promoting or demoting someone because they're of a specific age, regardless of their ability or experience. Direct age discrimination can potentially be objectively justified in the same way as indirect age discrimination.

Indirect discrimination

Indirect discrimination occurs when:

1. a provision, criterion or practice is applied to all, and:
2. it puts a group with a protected characteristic at a disadvantage when compared with another group
3. an individual is put at a disadvantage
4. the employer cannot show it to be a proportionate means of achieving a legitimate aim

For example, if a criterion is put in place that an employee must have at least 10 years’ service before being eligible to apply for promotion, this means that employees under the age of 26 cannot be promoted. This would be unlawful unless the employer could show that there was a good reason for the 10 years’ service being required.

Associative discrimination

This is treating someone less favourably because they associate with an individual who has a protected characteristic. For example, treating someone unfairly because they're part of a group of young employees, even though they themselves are older.

Perceptive discrimination

This is treating someone less favourably because it's perceived that they have a protected characteristic, whether they do or not. For example, refusing to appoint someone because it's wrongly thought that they are a particular age.

Victimisation

Victimisation occurs when someone is treated less favourably because they've made or supported a complaint, or raised a grievance under the Equality Act 2010. It also applies if it's thought that they've made a complaint. A comparator isn't required for a claim of victimisation. Post-employment victimisation can occur - for example, refusing to give a reference to someone who had made a complaint under the Equality Act 2010 - although the Act has some grey areas concerning post-employment victimisation.

Harassment

Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

There’s no longer any specific legislation making employers liable for harassment that comes from a third party (for example, a customer). However an employer can still be liable as a result of numerous other legal duties, for example breach of contract, direct discrimination and under the Protection from Harassment Act 1997. This, and good practice, mean that employers should continue to take steps to protect employees from all forms of harassment. 

Find out more in our factsheet on workplace bullying and harassment.

Positive action

Employers can take positive action, for example to address under-representation or other forms of disadvantage within the workforce. The provisions are complex and must be handled very carefully. Different provisions apply concerning positive action relating to recruitment and promotion. See guidance from the EHRC.

Other important legal points

• Length of service requirements for employment benefits practices of five years or less are legal.
• Length of service requirements for employment benefits practices of periods longer than five years may also be justifiable if the employer can show that they've awarded the benefit to reward loyalty, to encourage motivation or to recognise the experience of a worker.
• The National Minimum Wage and National Living Wage are still related to age, as is the basic award used when calculating unfair dismissal awards.

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