Age discrimination

Fiona Cuming

Editor's message: With the rise of the state pension age, an increasing number of older workers are choosing to remain in work for longer, or return to work, resulting in an ageing workforce.

Dismissals based on an employee's age, for example compulsory retirement, can amount to direct age discrimination under the Equality Act 2010.

Unlike any other type of direct discrimination, direct age discrimination is unique because it can be justified if it serves a legitimate business need that cannot adequately be met in some other, less discriminatory, way. However, in the context of retirement, the reality is that you will be able to justify compulsory retirement at a particular age only in exceptional circumstances, for example for health and safety reasons.

You may worry that having conversations with older workers about their plans for retirement could amount to direct age discrimination. While using these conversations to pressurise an older worker into retiring is likely to amount to direct discrimination, having an open discussion with an older worker about their plans is unlikely to be discriminatory.

Younger workers are also at risk of age discrimination, particularly in the context of recruitment. For example, a requirement for job applicants to have at least four years’ experience may amount to indirect age discrimination against younger applicants. You should word job adverts carefully and focus on the skills required, rather than a person’s experience, unless a particular level of experience is justified.

Fiona Cuming, employment law editor

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