Age discrimination is a civil wrong, not a criminal one. But should that change?
If someone thinks they have suffered unlawful discrimination at work because of their age – or any other protected characteristic (e.g. sex, race, disability) - they can sue the discriminator. The same applies to discrimination in employment, education, health and providing goods and services. If the victim’s claim is successful, the discriminator will have to pay compensation.
But could it be time for the UK to start getting really tough on discriminators, by criminalising age bias? Imposing criminal sanctions for discrimination is a relatively alien concept to the UK, but is more common in other jurisdictions.
In France, for example, discrimination occurring in employment, recruitment or the provision of goods and services can be punished by three years in prison and/or a fine of up to €45,000. The usual option of bringing a civil court or tribunal claim remains available for victims of discrimination, but it can also be prosecuted in the same way as any other crime.
Racism on trial
The racism trial of French journalist Eric Zemmour is a recent, high profile example. Other countries that criminally sanction discrimination include Brazil, Norway, Greece, Russia, Finland and Mexico.
Reforming the law in this way might send a strong and clear message that discrimination is not tolerated in British society and the threat of a criminal record could be a powerful deterrent to would-be discriminators. But, besides that, would such a reform have any real practical benefit?
Many cases of discrimination occur in the workplace, where criminalising discrimination would be unlikely to provide further incentive to employers and corporate entities. This is because criminal laws are typically enforceable only against individuals. In any event, the expense of litigation and reputational damage caused by a discrimination claim is already a powerful deterrent and provides strong motivation for employers to train their staff in diversity issues.
Beyond reasonable doubt: criminal standard of proof
In addition, discrimination in a criminal trial would have to be proved according to the criminal standard of proof - “beyond all reasonable doubt”. That very high hurdle would be difficult for a prosecutor to overcome in many discrimination cases. Currently, less than 20% of claims that reach the Employment Tribunal are successful and that is with the much lower civil standard of proof (“on the balance of probabilities” - greater than 50%).
Criminalising discrimination would also require the application of additional resources in an era of unprecedented cuts to the police and the criminal justice system. Radical reform along these lines would therefore not only be of limited practical use but is also extremely unlikely to happen in practice.
Age hate crime?
There is, however, a possible alternative approach. UK criminal legislation already caters for “hate crimes” – that is, offences committed against victims because they have a particular characteristic. The law requires an assault motivated by race, religion, disability or sexual orientation to receive a higher sentence compared to a purely random assault. Discrimination is treated as an aggravating factor.
So, with four of the Equality Act’s nine protected characteristics already covered in this way, could it be time to add age to the list? Canada has had “age hate crime” laws for many years and the implementation of similar laws in the UK would reinforce the idea that ageist hatred is no more acceptable than racist hatred. Political parties could seize on it as a way of finding favour with an ageing electorate.