How-to guide: How to avoid age discrimination in the workplace (UK)

Introduction

This how-to-guide provides guidance and information about age discrimination in the workplace to in-house counsel, private practice lawyers and human resources professionals working in England, Wales and Scotland (GB). It includes an overview of the relevant law, examples of workplace situations when age discrimination can arise, and practical tips for employers to use to avoid age discrimination. This how-to guide does not apply to Northern Ireland, where employment law is devolved to the Northern Ireland Assembly.

This guide covers:

Overview of workplace age discrimination
Legal framework
Examples of workplace age discrimination
Practical tips for employers to use to avoid age discrimination

This guide can be used in conjunction with How-to guide: Overview of workplace discrimination and harassment law and Quick view: Protected characteristics under the Equality Act 2010.

Section 1 – Overview of workplace age discrimination

Understanding, and taking steps to avoid, age discrimination is crucial for maintaining a fair and inclusive workplace. Failure to tackle this issue can lead to significant legal risks and financial consequences. Employers found liable for age discrimination may face legal action, resulting in substantial financial penalties such as compensation awards and legal fees. Additionally, the costs associated with high employee turnover, rehiring, and retraining due to discriminatory practices can further strain an organisation’s resources.

Beyond legal and financial implications, age discrimination adversely affects an organisation’s culture and reputation. A workplace perceived as ageist can experience decreased employee morale, productivity and engagement. Such an environment can foster division and mistrust among staff, leading to a toxic work atmosphere. Moreover, organisations known for discriminatory practices risk damaging their public image, which can deter potential clients and talented jobseekers, ultimately impacting business success.

Proactively addressing age discrimination also enhances diversity and inclusion within the organisation. An age-diverse workforce brings a range of perspectives, experiences and skills, fostering innovation and effective problem-solving. By valuing employees of all ages, organisations can better meet the needs of a diverse customer base and adapt to changing market dynamics. Furthermore, inclusive practices contribute to higher employee satisfaction and retention, reducing turnover costs and enhancing organisational stability.

Section 2 – Legal framework

2.1. The Equality Act 2010

The Equality Act 2010 (EqA 2010) consolidates previous anti-discrimination laws into a single framework. It aims to protect individuals from unfair treatment and promote a more equal society by addressing discrimination in various forms.

2.1.1. Age as a protected characteristic

Age is explicitly recognised as one of the nine protected characteristics under the EqA 2010 (section 5), making it unlawful to discriminate against someone based on their age in employment and other areas. The EqA 2010 ensures that individuals are not treated less favourably because of their age, whether they are young, middle-aged or older.

For further information about the protected characteristics under the EqA 2010, see Quick view: Protected characteristics under the Equality Act 2010.

2.1.2. Direct discrimination

Direct age discrimination (section 13 EqA 2010) occurs when an individual is treated less favourably than another person in a similar situation, because of their age. For example, if a qualified candidate is overlooked for a promotion solely due to being considered ‘too old’ or ‘too young’, this constitutes direct discrimination. However, unlike direct discrimination based on other protected characteristics, the EqA 2010 allows for direct age discrimination if it can be objectively justified as a proportionate means of achieving a legitimate aim (see 2.1.6 below).

2.1.3. Indirect discrimination

Indirect age discrimination (section 19 EqA 2010) arises when a policy, practice or criterion that applies to everyone, disproportionately disadvantages individuals of a particular age group. For example, a redundancy criterion of length of service may disadvantage younger employees. Such practices are unlawful unless the employer can demonstrate that they are a proportionate means of achieving a legitimate business aim.

2.1.4. Harassment

Harassment (section 26 EqA 2010) related to age under the EqA 2010 involves unwanted conduct that violates an individual’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. This can include making derogatory remarks about age, mocking abilities based on age-related stereotypes or isolating a person due to age. It should be noted that the person impacted by the harassment does not necessarily have to be of the age group that is being mocked.

Employers are responsible for preventing such behaviour and can be held liable if they fail to take reasonable steps to stop it.

2.1.5. Victimisation

Victimisation (section 27 EqA 2010) occurs when an individual is treated unfairly because they have made or supported a complaint about discrimination or have raised concerns about such behaviour. For example, if an employee is denied training opportunities after filing an age discrimination complaint, this would be considered victimisation. The EqA 2010 protects individuals from such retaliatory action.

For more detailed information about the different types of discrimination under the EqA 2010 generally, see How-to guide: Overview of workplace discrimination and harassment law.

2.1.6. Objective justification

While the EqA 2010 prohibits age discrimination, it allows for exceptions where different treatment can be objectively justified. This means that if an employer can demonstrate that age-based policies or practices are a proportionate means of achieving a legitimate aim, they may be deemed lawful. For instance, setting a mandatory retirement age for certain physically demanding roles could be justified to ensure safety and performance standards.

2.2. Other relevant legislation

In addition to the EqA 2010, several laws address aspects of age discrimination and related employment rights.

2.2.1. Employment Rights Act 1996

The Employment Rights Act 1996 (ERA) consolidates various employment laws, outlining the rights and responsibilities of both employers and employees. While the ERA does not specifically target age discrimination, it encompasses provisions that indirectly relate to it. For instance, the ERA covers unfair dismissal, including redundancy. Ensuring that dismissal and redundancy procedures are free from age bias is crucial, as age-related unfair dismissal claims can arise under the ERA. Employers must apply fair and consistent criteria in dismissal processes, such as redundancy, to avoid indirect age discrimination.

2.2.2. Protection from Harassment Act 1997

The Protection from Harassment Act 1997 (PHA) was initially introduced to address stalking and harassment but has since been applied to various contexts, including the workplace. The PHA makes it unlawful to pursue a course of conduct that amounts to harassment, which can encompass age-related harassment. Employers can be held vicariously liable for harassment perpetrated by their employees if they fail to take reasonable steps to prevent such behaviour. This underscores the importance of implementing robust anti-harassment policies and training programmes to mitigate potential liabilities.

2.2.3. Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011

The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 abolished the default retirement age (DRA) of 65, meaning employers can no longer compulsorily retire employees based on age unless it can be objectively justified. This reinforces the principle that employment decisions should be based on merit and capability rather than age.

Section 3 – Examples of workplace age discrimination

3.1. Direct age discrimination

Direct age discrimination occurs when an individual is treated less favourably explicitly because of their age. This form of discrimination is unlawful under the EqA 2010, unless it can be objectively justified as a proportionate means of achieving a legitimate aim. In the workplace, direct age discrimination can manifest in various ways, including during recruitment, promotion and termination processes.

Example: denial of promotion due to age

An illustrative case is Seldon v Clarkson Wright & Jakes [2012] UKSC 16, where a partner in a law firm was compulsorily retired at age 65 based on the firm’s partnership deed. The Supreme Court acknowledged that while direct age discrimination had occurred, it could be justified if the mandatory retirement age pursued legitimate aims, such as workforce planning and staff retention. The case underscores the necessity for employers to provide clear, objective justifications when implementing age-based policies.

Example: job advertisements specifying age preferences

Advertising job roles with specific age criteria can constitute direct age discrimination. For example, a job posting seeking candidates ‘under 30’ may unlawfully exclude older applicants.

Example: discriminatory termination criteria

Terminating an employee’s contract solely based on age is a clear example of direct age discrimination. In Marshall v Southampton and South West Hampshire Area Health Authority (1986) Case 152/84, a female employee was required to retire at age 60, while her male counterparts could work until 65. The European Court of Justice held that this constituted direct discrimination based on sex and age, emphasising that employment decisions should not be based on age unless objectively justified.

3.2. Indirect age discrimination

Indirect age discrimination arises when a seemingly neutral policy, criterion or practice disproportionately disadvantages individuals of a particular age group, without sufficient justification. Unlike direct discrimination, which is overt, indirect discrimination is often subtle and unintentional, making it imperative for employers to scrutinise their policies to ensure fairness across all age groups.

Example: educational requirements impacting older employees

In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, heard alongside Seldon (above), Mr Homer, aged 62, was employed as a legal adviser. A new policy required a law degree for promotion to the highest pay grade. Mr Homer, nearing retirement, found it impractical to obtain a degree at his age, effectively barring him from promotion. The Supreme Court held that this requirement constituted indirect age discrimination, as it placed older employees at a particular disadvantage. The case underscores the need for employers to assess whether educational prerequisites disproportionately affect certain age groups and to consider more inclusive alternative criteria.

Example: redundancy selection criteria favouring length of service

In Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387, the employer implemented a redundancy selection criterion favouring employees with longer service. While length of service can be a legitimate factor, it may disadvantage younger employees who have had less time to accrue service years. The Court of Appeal acknowledged that such a criterion could constitute indirect age discrimination but found it justifiable in this instance due to the legitimate aim of rewarding loyalty and experience.

Example: age limits in recruitment practices

In Jones v University of Manchester [1993] ICR 474, the university advertised a position with an age limit of 27 to 35 years, aiming to recruit individuals closer in age to the student body. Ms Jones, aged 44, was rejected despite her qualifications. The Court of Appeal found that the age restriction constituted indirect discrimination, as it disproportionately excluded older candidates without sufficient justification.

Example: mandatory retirement policies

In Rutherford v Secretary of State for Trade and Industry [2006] UKHL 19, Mr Rutherford challenged the statutory upper age limit for unfair dismissal and redundancy claims, arguing it disproportionately affected older workers. The House of Lords held that while the age limit did have a disparate impact, it was not significant enough to constitute indirect discrimination.

3.3. Age-related harassment and victimisation

Age-related harassment involves unwanted conduct related to an individual’s age that violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation occurs when an individual is treated unfairly because they have made or supported a complaint about discrimination or harassment. Both are prohibited under the EqA 2010.

Example: offensive remarks and dismissal

In Cowie v Vesuvius 220273/2021, an executive was referred to as an ‘old fossil’ by his superior and subsequently dismissed at the age of 58. The employment tribunal found that the derogatory remarks and dismissal were directly linked to the employee’s age, resulting in an award of over £3,000,000 in compensation for age discrimination, age-related harassment and unfair dismissal.

Example: exclusion from work events

Excluding employees from work-related social events based on age can amount to harassment. For instance, if older employees are deliberately left out of team gatherings or social functions, it may create a hostile environment. The Public and Commercial Services Union advised in 2024 that civil servants excluded from Christmas parties due to protected characteristics, including age, may have grounds for discrimination claims (eg, see The Times article: ‘Civil servants could sue over Christmas party snubs’).

Example: victimisation following a complaint

Victimisation occurs when an employee is treated unfavourably for raising concerns about discrimination. In the case of Miss Anne Giwa-Amu v Department for Work and Pensions 1600465/2017, the claimant faced victimisation after making protected acts under the EqA 2010. The tribunal upheld the claims and awarded the claimant over £400,000 in compensation.

Example: harassment through derogatory comments

Derogatory comments about an employee’s age can constitute harassment. In Crompton v Eden Private Staff Ltd 1404549/2019, a manager’s remarks to a 57-year-old employee, suggesting she had Alzheimer’s when she forgot something, were found to be both harassment and direct age discrimination. Such comments created a degrading and humiliating environment for the employee.

Section 4 – Practical tips for employers to use to avoid age discrimination

Employers seeking to minimise their risk of facing age discrimination issues can put measures in place in the key areas set out below.

4.1. Recruitment and hiring practices

Implementing fair and inclusive recruitment practices is essential to prevent age discrimination and to attract a diverse talent pool. Set out below are practical steps to achieve this.

4.1.1. Writing age-neutral job descriptions and advertisements

Ensure that job descriptions focus on the skills, experience and qualifications necessary for the role, avoiding language that implies a preference for a particular age group. Phrases such as ‘young and energetic’ or ‘mature and experienced’ can be discriminatory. Instead, use terms that describe the competencies required, such as ‘strong communication skills’ or ‘ability to work in a fast-paced environment’. This approach broadens the candidate pool and emphasises merit over age.

4.1.2. Implementing blind recruitment techniques

Adopt blind recruitment methods by removing personal information such as age, graduation dates or other age-related indicators from applications. This practice helps to eliminate unconscious bias, allowing hiring decisions to be based solely on relevant qualifications and experience. Utilising standardised application forms and structured interviews further promotes objectivity in the selection process.

4.1.3. Training hiring managers on age diversity

Provide comprehensive training for hiring managers to raise awareness about age-related biases and the importance of age diversity in the workplace. Training should cover legal obligations under the EqA 2010, the benefits of a multigenerational workforce, and strategies to assess candidates fairly. Regular training sessions can reinforce inclusive practices and reduce the likelihood of discriminatory behaviour during recruitment.

4.1.4. Monitoring and reviewing recruitment practices

Regularly audit recruitment processes to identify and address potential age biases. Collect and analyse data on the age demographics of applicants and new hires to ensure diversity. Seek feedback from candidates about their recruitment experience to identify areas for improvement. Implementing these measures demonstrates a commitment to fair hiring practices and continuous improvement.

4.2. Employee benefits and compensation

Ensuring equitable benefits and compensation across all age groups is crucial. Below are some practical steps to achieve this.

4.2.1. Standardising benefits across age groups

Offer consistent benefits to all employees, regardless of age. For example, avoid providing enhanced healthcare plans exclusively to older employees or offering training opportunities solely to younger staff. Such practices can lead to perceptions of favouritism and potential claims of age discrimination. Implementing uniform benefit structures ensures fairness and reduces the risk of discriminatory practices.

4.2.2. Avoiding age-based salary structures

Design compensation frameworks based on experience, skills and performance rather than age. For instance, avoid automatic salary increases solely based on an employee’s age or length of service without considering their contributions and competencies. This approach promotes fairness and aligns with legal standards, preventing indirect age discrimination.

4.2.3. Implementing flexible benefit options

Introduce flexible benefit schemes, such as a cafeteria plan, allowing employees to select benefits that suit their individual needs. For example, younger employees might prefer student loan repayment assistance, while older employees might value enhanced pension contributions; however, employers should not assume this will be accurate in all cases. This flexibility accommodates diverse preferences without making assumptions based on age, promoting inclusivity.

4.2.4. Regularly reviewing compensation policies

Conduct periodic audits of compensation and benefit policies to identify and rectify potential age biases. For instance, analyse pay scales to ensure no unintended disparities exist between different age groups. Engage with employees through surveys or focus groups to gather feedback on the perceived fairness of compensation practices. Regular reviews help maintain equitable treatment and compliance with anti-discrimination laws.

4.3. Training and development

Below are practical steps to achieve fairness and equality in training and development opportunities.

4.3.1 Providing opportunities for employees of all ages

Equal access to training and development

Providing equal access to training and development opportunities is essential for supporting employees at every stage of their careers. Employers should avoid assumptions about employees’ willingness or ability to learn new skills based on their age. For instance, offering digital skills training to all employees – rather than just younger workers – ensures that older employees can stay up to date with technological advancements. Equal access can be achieved by advertising training opportunities through internal communications and encouraging all employees to participate.

Career advancement for all age groups

Promotion and career development opportunities must be based on merit, not age. Employers should ensure that selection criteria for promotions are objective, transparent and fairly applied. Avoid terms such as ‘fast-track for young talent’, as they may exclude older employees. Providing clear pathways for career progression encourages employees of all ages to pursue advancement. Organisations can also establish internal mobility programmes that enable employees to transition into new roles based on their skills, regardless of age.

Offering flexible work arrangements

Flexible work arrangements, such as part-time work, job sharing or remote work, provide employees of all ages with opportunities to remain in the workforce. While younger employees may seek flexibility for educational pursuits or caregiving responsibilities, older employees may prefer phased retirement or reduced hours. Employers should offer flexible work options as part of a broader diversity and inclusion strategy. Providing these opportunities allows employees of all ages to balance personal commitments with work, fostering employee satisfaction and retention.

Recognising and valuing intergenerational contributions

Encouraging employees to contribute to cross-generational knowledge-sharing initiatives promotes workplace collaboration. For instance, pairing younger employees with experienced staff in mentorship or reverse-mentoring programmes facilitates skill-sharing and knowledge transfer. This approach helps employees of all ages develop new skills and perspectives. Recognising and celebrating the contributions of all generations – through initiatives such as ‘Employee of the Month’ or recognition programmes – reinforces the message that contributions are valued regardless of age.

4.3.2. Tackling age bias in performance reviews and promotions

Addressing age bias in performance evaluations and promotional decisions is essential to ensure fairness and compliance with anti-discrimination laws. Below are practical strategies to mitigate such biases.

Implementing structured evaluation criteria

Develop clear, objective criteria for performance assessments and promotion eligibility. For example, create standardised evaluation forms that focus on specific competencies and achievements rather than subjective opinions. This approach minimises the influence of personal biases and ensures that all employees are assessed based on merit.

Providing training on diversity, equity and inclusion

Conduct regular training sessions for managers and supervisors to raise awareness about conscious and unconscious age biases. For instance, workshops can include scenarios illustrating common biases in performance reviews, helping evaluators recognise and address their prejudices.

Encouraging diverse perspectives in evaluation panels

Assemble diverse evaluation panels for performance reviews and promotion decisions. Including individuals from various age groups and backgrounds can provide a broader perspective and reduce the likelihood of age-related biases influencing outcomes.

Regularly reviewing and auditing evaluation processes

Periodically audit performance review and promotion processes to identify and address potential age biases. Analyse data to detect patterns that may suggest discriminatory practices, such as disproportionate promotion rates among certain age groups.

4.4. Creating an inclusive work environment

Fostering an inclusive workplace is essential for preventing age discrimination and promoting a culture where employees of all ages feel valued and respected. Below are practical strategies to achieve this.

4.4.1. Implementing clear anti-discrimination policies

Develop and enforce comprehensive anti-discrimination policies that explicitly prohibit age-related bias. Ensure these policies are communicated effectively to all employees and integrated into the organisation’s code of conduct. Regularly review and update the policies to reflect current legislation and best practices. Providing training on these policies can further reinforce the organisation’s commitment to an inclusive environment.

4.4.2. Encouraging intergenerational collaboration

Promote initiatives that facilitate collaboration between different age groups. For example, establish cross-generational project teams or mentorship programmes where knowledge and skills are shared reciprocally. Such interactions can break down age-related stereotypes, enhance mutual understanding and leverage the diverse strengths of a multigenerational workforce.

4.4.3. Promoting age diversity in leadership

Strive for age diversity within leadership and decision-making roles. A diverse leadership team can provide varied perspectives, improve decision-making and serve as a testament to the organisation’s commitment to inclusivity. Encourage leadership development programmes that are accessible to employees of all ages, ensuring that advancement opportunities are based on merit and not influenced by age-related biases.