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, 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 his or her 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
Updated to reflect the average compensation awarded for age discrimination in 2017/18.
A table listing the age discrimination awards made by employment tribunals in 2017/18.
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Updated to include information on Saad v Southampton University Hospitals NHS Trust, in which the EAT set out the correct approach to determining "bad faith" in victimisation claims.
The law on discrimination in recruitment and selection, including the impact of the Equality Act 2010 on recruitment, direct discrimination, indirect discrimination, the duty to make reasonable adjustments, positive action, occupational requirements, monitoring and keeping records.
In Air Products plc v Cockram, the Court of Appeal held that the employment tribunal was correct to find that a rule in a long-term incentive share plan that employees whose employment terminates before they are 55 forfeit all unvested awards under the plan is justified.
HR and legal information and guidance relating to age discrimination.