This is a preview. To continue reading please log in or Register to read this article

Age discrimination

Updating author: Tina McKevitt


  • The law relating to age discrimination is governed by the Equality Act 2010. The core provisions of the Act, which repealed the Employment Equality (Age) Regulations 2006 (SI 2006/1031), came into force on 1 October 2010. While the Equality Act 2010 largely consolidated previous discrimination legislation, it also made some substantive changes such as removing the requirement for a comparator to establish victimisation. It is assumed that many of the principles that were established in the extensive body of case law that was decided under previous discrimination legislation will remain relevant in interpreting the provisions of the Equality Act 2010. For this reason such cases have been included in the body of this section together with an indication of the legislation under which they were decided.
  • Age is a "protected characteristic" under the Equality Act 2010. (See Definition of age)
  • The definition of "employee" for the purposes of protection against age discrimination is wider than that contained in other employment legislation. (See Who is protected?)
  • As well as being liable for its own actions, there are circumstances in which an employer will be liable for the acts of others. Under the wider provisions of the legislation, others who are not employers may find themselves liable. (See Who is liable?)
  • The Equality Act 2010 prohibits direct discrimination (which includes discrimination by association and discrimination by perception), indirect discrimination, victimisation and harassment. (See Prohibited conduct)
  • It is unlawful to discriminate in the context of employment or vocational training including, in particular circumstances, after the working relationship has ended where the prohibited conduct arises out of and is closely connected to that relationship. (See Prohibited conduct in the employment context)
  • Direct discrimination is where, because of the protected characteristic of age, a person treats another person less favourably than that person treats or would treat other persons. The less favourable treatment can relate to the person's actual or perceived age, even where the perception is wrong, or to the person's association with someone who has, or is perceived to have, the protected characteristic. (See Direct discrimination)
  • Indirect discrimination is where person A applies to person B, to B's disadvantage, a provision, criterion or practice that A applies or would apply equally to persons not of the same age group as B, but which puts, or would put, persons of the same age group as B at a particular disadvantage when compared to other persons and which A cannot show to be a proportionate means of achieving a legitimate aim. (See Indirect discrimination)
  • Under the Equality Act 2010, it is possible for employers to justify both direct and indirect discrimination. (See Justification)
  • Harassment is where person A engages in unwanted conduct related to the protected characteristic of age that has the purpose or effect of violating person B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him or her. (See Harassment)
  • Under the Protection from Harassment Act 1997, an employer may be vicariously liable for a course of conduct by one of its employees that amounts to harassment under the Act. (See Protection from Harassment Act 1997)
  • Victimisation is where person A subjects person B to a detriment because B has done, or A believes that B has done, or may do a "protected act". (See Victimisation)
  • Employers may in certain circumstances lawfully restrict a job to people of a particular age group. (See Occupational requirements)
  • Employers that compulsorily retire employees, or attempt to pressurise employees to retire, are at risk of direct age discrimination and unfair dismissal claims. (See Retirement)
  • The Equality Act 2010 contains a specific exemption allowing employers to use length of service as a criterion for benefits in some situations. (See Service-related benefits)
  • There is an exception from unlawful age discrimination where enhanced company redundancy payment provisions linked to length of service mirror provisions in the statutory redundancy scheme. (See Redundancy payments)
  • There are also exceptions from unlawful age discrimination in relation to the national minimum wage; insurance and related financial services; national security; statutory authority; the armed forces; childcare; and contributions to personal pension schemes. (See National minimum wage, Insurance and financial services and Other exceptions)
  • Terms that constitute, promote or provide for treatment that is prohibited under the Equality Act 2010 are unenforceable. It is not possible to contract out of the Act's provisions except by way of a conciliated settlement or a qualifying settlement agreement (previously referred to as a compromise contract). (See Terms)
  • Employers may, in certain circumstances, take measures to enable or encourage people who share a particular protected characteristic to overcome a disadvantage that the employer reasonably thinks is suffered by people with the same protected characteristic. Employers may also, in defined circumstances, appoint or promote a person with a protected characteristic in preference to another person who does not have the protected characteristic. (See Positive action)
  • With effect from 1 October 2010, all occupational pension schemes must be read as including a non-discrimination clause. (See Pensions and other employment benefits)
  • Public authorities have a general duty to eliminate discrimination, harassment and victimisation; advance equality of opportunity between persons who share a protected characteristic and those who do not; and foster good relations between persons who share a protected characteristic and those who do not. (See Public authorities)

Sector resources

Additional resources on this topic are available for the following sectors: