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 include information on Heskett v Secretary of State for Justice, in which the EAT considered if an age discriminatory pay policy was justified.
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 a decision that will have implications across the public sector, the government has been denied leave to appeal a landmark ruling that pension reforms discriminated against younger workers.
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.
An 88-year-old secretary is suing the NHS for age discrimination after she was dismissed from her post at the Royal Berkshire Hospital.
In Matier v Spring & Airbrake Ireland Ltd, a Northern Ireland industrial tribunal awarded £3,155 for age discrimination to a jobseeker who was told that a prospective employer was "looking for a younger person".
In James v Coedffranc Community Council, an employment tribunal upheld an unsuccessful job applicant's age discrimination claim after an interviewer said "I've just noticed how old you are" and jotted down older candidates' ages on interview notes.
Updated to reflect the increase in the cap on a week's pay for the purposes of calculating redundancy pay, in force on 6 April 2019.
HR and legal information and guidance relating to age discrimination.