Ageism at work
Ageism, also called age discrimination, is when you are treated unfavourably because of your age. This section focuses on ageism that you may experience at work and how you are protected by the law.
- How am I protected from age discrimination?
- Ageism in job adverts
- Can I be asked about my health when I apply for a job?
- What are my rights as an agency worker?
- What is positive action?
- What are my rights as a personal office holder or business partner?
- What should I do next if I have been a victim of ageism?
How am I protected from age discrimination?
Under the Equality Act, you are protected from age discrimination in all aspects of your employment including recruitment, employment terms and conditions, promotions and transfers, training and dismissals.
The Equality Act protects you from direct discrimination, indirect discrimination, harassment and victimisation. Some examples of what these might include are below:
|Direct discrimination||If your employer says he/she will not promote you because you’re 'too old'.|
|Indirect discrimination||If your employer offers a training course only to recent graduates, this could constitute indirect discrimination, as it could exclude older employees.|
|Harassment||If colleagues make jokes about your age which were offensive, or comments make about the age of someone you associate with, such as a partner, this would be harassment.|
|Victimisation||For example, if you are passed over for a promotion that you would otherwise have been given, after making a witness statement supporting a colleague’s complaint of age discrimination.|
Remember, an employer may be able to justify discrimination, but they can never justify harassment or victimisation.
While the Equality Act 2010 protects you from age discrimination at work or when applying for a job, there is an exception in the law which applies to age discrimination only.
An employer can make a decision based on someone's age if they can show that it is objectively justified and proportionate. This should only be a defence in a limited number of circumstances and doesn't mean that employers have 'free reign' to discriminate against older workers. Aside from very specific circumstances, employers can't force employees to retire. The default retirement age was scrapped in 2011.
Ageism in job adverts
When advertising a job role, employers can’t include age limits, and should avoid using words which could suggest they are looking for applicants from a particular age group – for example, by using terms such as ‘10 years’ experience’, ‘enthusiastic young people’ or ‘ recent graduates’.
They can ask for your date of birth. For example, to check you are over 18 if necessary, or to see whether they are attracting a wide range of candidates – but they should keep this separate from the application and must not use it as a deciding factor in whether to give you the job.
Can I be asked about my health when I apply for a job?
You should not be asked about your health or any disability you might have during the recruitment process, except in very limited circumstances. Those circumstances are:
- when the employer wants to monitor diversity among applicants
- when the employer needs to know if you have health or disability related requirements for the selection process
- when you have been given a job offer
- when you are part of a pool of successful candidates who will be offered a job when one becomes available
Aside from the exceptions above, you should not be asked a health or disability question in the application or during an interview, nor should you be asked to fill in a health questionnaire before a job has been offered to you.
Questions that relate to your sickness absence in any previous jobs count as questions relating to health or disability too.
However, during the application process you may be asked to fill in a monitoring form which asks if you have a disability. This should be kept separate from your application and should not be used as part of the recruitment decision.
Once a job offer has been made, the employer could ask questions to make sure your health or disability won’t stop you from being able to do an essential part of the job, for example heavy lifting.
What are my rights as an agency worker?
Agency workers now have the same rights as permanent employees in terms of protection from discrimination. Agencies must not discriminate against you because of your age. For example, they can’t deny you access to their services or to particular job placements based on your age.
What is positive action?
Positive action refers to the steps that an employer can take to encourage people from disadvantaged groups to apply for jobs.
For example, if an employer finds that older people are underrepresented in their workplace, they can state in recruitment adverts that older people are welcome to apply. They could do the same if they found that other people with a protected characteristic were underrepresented among their employees, such as women.
This isn’t the same as positive discrimination, which isn’t allowed in equality law. An example of positive discrimination would be where an employer decides to only accept applications from older candidates, even though the job could be done equally well by a younger person. This would not be lawful.
Employers don’t have to take positive action, it’s up to them if they choose to do so. Either way, an employer must always offer the job to the best candidate, even if they don’t have the particular protected characteristic that the employer was seeking to target.
Where two job applicants are both equally able to do the job, the employer can base their decision on positive action to improve the diversity of their workplace. The rules for doing this are quite strict and the employer must be able to show that the candidates were equally qualified.
What are my rights as a personal office holder or business partner?
The Equality Act protects personal office holders and business partners to make sure they don't experience age discrimination.
Personal office holders
Personal office holders are people appointed to carry out a function under the supervision of another person, and have a different type of contract to an employee. You are an ‘office holder’ if you are a:
- registered company director or secretary
- board member of a statutory body
- judge or tribunal member
- police officer
- member of the clergy.
Under the Equality Act it is unlawful for the person responsible for the appointment and training of an office holder to discriminate against an office holder based on their age. For example, if you are refused a position as a trustee because you are ‘too old’, that could be unlawful under the Equality Act.
Under the Equality Act, a partnership firm must not discriminate against or victimise someone when they are offering a partnership position, creating the terms for a business partner, or deciding whether or not to offer him or her a position as a partner.
What should I do next if I have been a victim of ageism?
If you feel like you have experienced direct or indirect discrimination, harassment or victimisation in the workplace, you should:
- Firstly, follow your employer’s grievance procedure (see dealing with disputes at work for more information).
- If this doesn’t have a successful outcome, you may need to seek further advice with a view to going to an employment tribunal. Bear in mind that there are strict time limits for bringing a case to tribunal – three months from the day of the first incident(s).
You may want to seek expert advice before you consider this.
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