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
In Broadist v HM Prison Service, an employment tribunal found that the employer's refusal to allow a semi-retired dog handler to remain working on a part-time basis with an alternative dog, after his dog had died, amounted to indirect age discrimination.
In Munro v Sampson Coward LLP, the employment tribunal held that an employer's act of sending a birthday card to an employee was "an act of kindness" and not an act of discrimination.
In Kirk v Citibank NA and others, an employment tribunal held that a senior banker who was dismissed following a redundancy process was subjected to direct age discrimination and unfairly dismissed.
Which employment cases will have the biggest impact on HR in 2020? We assess the likely impact on employers of upcoming cases on: the national minimum wage, data protection, age discrimination, collective bargaining, and TUPE.
Updated to include information on Bessong v Pennine Care NHS Foundation Trust, in which the EAT considered if an employer can be held liable for third-party harassment under the Equality Act 2010.
A table listing the age discrimination awards made by employment tribunals in 2018/19.
In Heskett v Secretary of State for Justice, the Employment Appeal Tribunal upheld the tribunal decision that a discriminatory pay policy is justified as a proportionate means of achieving the legitimate aims identified by the Ministry of Justice.
In Pitcher v Chancellor, Masters and Scholars of the University of Oxford and another, an employment tribunal held that Oxford University's "employer-justified retirement age" for academics is a proportionate means of achieving its legitimate aims.
In Lord Chancellor and another v McCloud and others; Ministry of Justice v Mostyn and others; Secretary of State for the Home Department and others v Sargeant and others, the Court of Appeal held that the Government's view that "it felt right" to protect older workers with transitional provisions when making changes to pensions for judges and firefighters was insufficient to defend direct age discrimination claims.
HR and legal information and guidance relating to age discrimination.