In this series of blogs we’re exploring the Equality Act 2010.

In this blog we are looking specifically at the protected characteristic of age.

Let’s explore:

Age is a protected characteristic from discrimination in the Equality Act 2010 and applies to discrimination at any age. This occurs when you’re treated unfairly because of age and it is unlawful unless the discrimination can be justified.

The Act states you can be discriminated against directly, indirectly, by harassment and victimisation.

Let’s take a closer look at what each of these mean in the context of age.

• Direct Discrimination

This is when you are treated or you treat someone at a disadvantage because of your age in comparison to another person of a different age group but is reasonably like yourself (comparator). This could include being refused general job training that all the younger members of staff are involved in. This can be done based on:

• Your actual age.
• The age you are perceived as.
• An age you are associated with.

The associated age could be anyone you are involved with such as your friend or your spouse. Direct age discrimination was successfully claimed in the Employment Tribunal for Mr Graham v MHD Builders Ltd and Gareth Hyne 2019. It was proven that Mr Graham’s age was a significant influence for sending the threatening email when referring to his ‘attitude’ and that he had ‘a lot of maturing’.

• Indirect Discrimination

This is when a policy or practice, usually of a company, results in your age being put at a disadvantage. The policy will be one that applies to all and is rarely intentional but still negatively effects an age group.

e.g., a company advertising for a job that needs 10+ years is automatically putting older age groups at an advantage over younger who are just starting their careers.

• Harassment

Humiliation, embarrassment and intimidation from another all come under the title of harassment. This can include jokes about age related features such as wrinkles or referring to someone as ‘baby face’. This was claimed successfully in Robson v Clarke’s Mechanical Ltd 2020 when Robson was referred to as ‘Half Dead Dave’ by staff which a younger member of staff wouldn’t have been called that.

This also applies to people you’re associated with experiencing harassment too like in direct discrimination. This can occur by being excluded by staff. For example, if the staff organise a night out together and you are the only one not invited because they think you’re too young or too old to be with them. It may also come in the form of feeling pressure to retire.

Age-related harassment can also include a third party such as a client or customer. A claim can be made if your employer knew about this on at least 2 occasions and does nothing to help you.

• Victimisation

This is when you’re treated unfairly because of making a complaint under the Equality Act 2010 either for you or someone else. It can also include giving evidence of discrimination in a complaint that has already been made. To prove this, you don’t need to compare yourself to another.

Looking at age can sometimes be necessary for the work you’re doing or wanting to do if there is ‘proportionate means achieving a legitimate aim’. This simply means there must be good reason for age to be a factor. This is acceptable where there is positive action such as hiring aged 18-21 years olds in a job where they are underrepresented.

These are only examples and there are very many ways you could be discriminating someone or you could be discriminated against. Make sure you check your policies and processes and have clear guidelines in place for considering matters where age may be a factor. Within education there may be a view someone is too young or too old to be attending a particular programme or to reside in particular accommodation. Maybe even to be put forward for an apprenticeship or scholarship.

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