The Good Work Plan: defining employment status
Discriminating against an employee on the grounds of their age is an outright no-go area. In fact, excluding the very rare exception, their age is none of your business at all.
Age discrimination applies from the moment you start recruiting, to the very last day an employee’s with you – whatever industry you’re in, whatever business level you’re at, the law applies to you.
Discriminating against an employee based on their age is bad for your business. It can damage your reputation. It can impact employee retention. It can impede your recruitment efforts. And it can land you in court: every business’ worst nightmare.
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Employees’ right to not be discriminated against on the grounds of their age is covered by the Equality Act 2010. Within this, there are four overarching types of age discrimination:
|Direct discrimination||· Deciding not to employ someone because of their age|
· Dismissing an employee because of their age
· Not providing an employee with training because of their age.
|Indirect discrimination||When one of your policies, practices, procedures or workplace rules puts people of a certain age at a disadvantage. For example, saying people must be ‘highly experienced’ or ‘extremely energetic’ in your recruitment process.|
|Harassment||Harassment violates employees’ dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment for them, on the basis of a protected characteristic – like their age.|
Harassment isn’t always underlined with malice. It may be repetitive jokes, nicknames or teasing, but to the employee on the receiving end, it is upsetting. For example, an elderly employee continually being called a ‘coffin dodger’, or a young employee being told ‘it was before your time’.
|Victimisation||This is when an employee has either made or intends to make a complaint around discrimination or harassment, or has given or plans to give evidence relating to discrimination or harassment, and is treated adversely as a result.|
The employee in question might be branded as a ‘troublemaker’ on the back of their actions, which is held against them during their employment with you.
Remember, this is just a very brief overview of the main types of age discrimination and what they entail. For a robust look at what you can and can’t do when it comes to an employee’s age, get in touch with our HR & Employment Law specialists on 0345 844 1111 or firstname.lastname@example.org.
Rarely, but occasionally, you may be able to lawfully discriminate someone based on their age. The below three examples constitute lawful age discrimination:
1. You have a clear, objective justification for treating someone differently.
3. There’s an occupational requirement that someone must be of a certain age. For example, if you’re creating a TV advert for promoting holidays for over 60s, you might be able to argue that it’s vital for the actors to be in a similar age bracket to best relate to your target audience.
If you’re considering going down the lawful age discrimination road, to avoid any potential backlash, we’d always recommend seeking legal advice first.
As we touched on earlier, you mustn’t discriminate applicants based on their age – unless you have a justifiable reason for doing it. So, this means refraining from saying things like ‘looking for recent graduates’ or ‘the candidate must be young and energetic’, for example.
Examples of age discrimination during the interview process includes asking questions like:
These could be construed as age discrimination because they help you to get a rough idea of the candidate’s age and, if you can’t demonstrate why they didn’t get the job, they could argue it was down to how old they are.
In some cases, you may need to stipulate an age for legal reasons. For example, if the job involves serving alcohol, employees will need to be 18 or over to carry out the job, and this would be an objective justification for treating someone differently.
When it comes to staying on the right side of HR & Employment Law regulations, we’re your guys. We’ve been helping businesses – like yours – for more than 20 years, and we’ve got a proven track record of taking the complication out of compliance.
Whether you need support putting legally sound interview questions together, retaining employees or dealing with allegations of discrimination – and everything else in between, our experts have got your back from start to finish.
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