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Age discrimination

Overview
The Equality Act 2010 covers discrimination and harassment related to age (amongst other characteristics), as well as victimisation.
 
Direct age discrimination is defined as treating someone less favourably because of age. It can sometimes be justified if it is a proportionate means of achieving a legitimate aim.
 
Indirect age discrimination is when a provision, criterion or practice (PCP) is applied to everyone and is apparently age neutral, but which:
  • disadvantages more people in one age group than in another
  • causes an individual employee a disadvantage
  • is not justifiable as "a proportionate means of achieving a legitimate aim".

Harassment is defined as unwanted conduct related to age which has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Victimisation is defined as treating someone less favourably because they have brought a claim of discrimination or supported someone else who has made a claim.
 
Some practices that would otherwise be discriminatory are covered by exemptions. These include:
  • age based appointments based on genuine occupational requirements
  • some types of positive action to address underrepresentation or disadvantage
  • some service-related pay and benefits
  • paying the National Minimum Wage
  • statutory redundancy pay and some enhanced redundancy pay schemes
  • certain age based practices related to pensions and insurance.

There is no longer an exemption covering compulsory retirement.

Remedies for a successful discrimination claim can include a declaration, recommendations and/or compensation. Employers are advised to follow good practice and may be held vicariously liable for the actions of their employees.
Recent developments

Following consultation on the bands of compensation for injury to feelings in discrimination claims, the Presidents of the Employment Tribunals in England and Wales and Scotland have confirmed an increase to the compensation bands.

The three bands of compensation for injury to feelings were identified in Vento v Chief Constable of West Yorkshire Policy (No 2) and were previously adjusted in 2009 by Da’Bell v NSPCC. A 2017 Court of Appeal decision in Pereira de Souza v Vinci Construction UK Ltd confirmed the 10 per cent Simmons v Castle uplift should be applied to the bands. This decision triggered the consultation.

For claims presented on or after 11 September 2017, the bands for compensation for injury to feelings have increased to the following:

  • lower band (for less serious cases, such as one off incidents): £800 to £8,400
  • middle band (for serious cases not within the upper band): £8,400 to £25,200
  • upper band (for most serious cases, such as length campaigns): £25,000 to £42,000

These bands will be reviewed in March 2018 and annually thereafter.