You might find yourself a victim of age discrimination because colleagues or employers have stereotypical views.
For example, a manager may regard you as too young for promotion to a more senior position, yet you might also find yourself too old to be considered for a job as a junior reporter, for example.
Age differs from other protected characteristics in that it is relative. There is no absolute definition of 'old' or 'young'. You are 'younger' or 'older' only in comparison to other workers. Also, we pass through different age groups throughout our working lives. A policy at work might be to our advantage depending on what age we are.
As Law at Work (2020, p 206) puts it:
"Society recognises that there can be good social policy reasons for allowing employers to treat a particular age group less favourably at particular points in time."
Because of this, your employer is allowed to 'objectively justify' age discrimination in some circumstances. To do this, they must produce genuine, persuasive evidence to show that, although they are treating you differently because of your age, their actions are a 'proportionate means of achieving a legitimate aim'.
This implies your employer must set out their aims, then show they are legitimate. Any aim must be in the public interest – in other words, it must involve a valid social policy aim. Your employer must demonstrate what the problem was, what they hoped to achieve with a policy that discriminated on the grounds of age, what alternatives they considered, and why they chose not to adopt them.
The WorkSmart website gives this example:
"In a direct discrimination case, it may be argued that workers over 50 should receive higher redundancy payments for each year of service because of the difficulties that they are likely to face in finding alternative employment.
"However, it would have to be demonstrated, using persuasive evidence, that older workers are more likely than younger workers to be at greater risk of unemployment and that the higher payments were proportionate to that greater risk."
Law at Work 2020 gives examples of aims that have been deemed acceptable justifications of direct age discrimination:
- Promoting workforce diversity.
- Rewarding experience and loyalty.
- Helping workers to prepare for retirement.
- Cushioning the financial blow for older employees who may find it harder to find new work if made redundant.
- Legitimate health and safety concerns for the workforce and the wider public.
If your employer can objectively justify an age discriminatory policy, it does not matter that it coincidentally meets a business objective such as saving money.
Only a small minority of age discrimination claims make it as far as a tribunal. It is generally easier to resist age discrimination by collective action; that is, by negotiating with your employer when it is considering introducing such a policy.