The new ACAS guidance offers employers some helpful tips on avoiding age discrimination.
The new guidance is accompanied by two additional documents, outlining top ten obligations for employers and top ten age discrimination myths. Although the guidance is stated to be aimed at both employers and employees, much of the content is aimed at employers.
What’s in the guidance?
The guidance provides examples of age-related direct discrimination, indirect discrimination, harassment and victimisation. It provides a helpful list of “dos and don’ts” in managing increasingly age diverse workforces.
The guide reminds employers to avoid making age-based assumptions about an individual’s retirement plans, ambitions or training needs.
Direct discrimination
The guidance explains that direct discrimination occurs where someone is treated less favourably than other because of their age, the age of someone they are associated with (for example if they have a partner who is substantially older/younger than they are), or the age that they are perceived to be (for example, they look much younger than they actually are).
The guidance gives examples involving excluding younger applicants from a role because of an assumption that they will not want to do the extra work involved, and doing similar for older workers because of a belief that they will not be able to adapt to change. There is a further example where a staff member is not invited to a business party because their much older partner “would not fit in with the party mood”. All these examples involve presumptions about different age groups.
Indirect discrimination
The guidance explains indirect discrimination. This occurs when a provision, criterion or practice applied equally to employees or job applicants, which puts those who share a protected characteristic (such as age) at a particular disadvantage, and such a provision, criterion or practice is unable to be objectively justified.
The guidance gives an example of age discrimination where a gym manager is looking for “fit and enthusiastic” staff. The criterion that new recruits be “fit” is (debatably) a neutral criterion that applies to all, but could put older workers at a disadvantage because fitness tends to decline with age.
This example potentially also gives rise to direct discrimination issues: “fit” could be just code for “young”. There are many cases such as these (see the direct discrimination section of our cases database for more).
Harassment
The guidance explains harassment as being unwanted conduct related to age (or any other protected characteristic) that has the cause or effect of violating a person’s dignity or creating an intimidating, hostile or degrading work environment.
The guidance explains the largely subjective nature of harassment. What matters is the impact that it has upon the victim. What one person may see as harmless “banter” may be highly offensive in the view of another. The guidance says that the reasonableness of the victim feeling the way they do may be taken into account.
Where age discrimination may happen
The guidance sets out the following as being areas where age discrimination is most likely to occur:
Recruitment
Training
Promotion
Pay and terms and conditions of employment
Performance management
Redundancy
Retirement
Dismissal
Flexible working
We’ve set out below some of the advice provided by the guidance in relation to some of these areas.
Recruitment and age discrimination
On recruitment, the guidance suggests advertising on two channels to avoid potential discrimination. Whilst advertising in multiple places is generally a good idea, employers should try to cast the net as wide as possible. Employers should apply their minds as to who is likely to see their adverts.
Job adverts should contain age diverse images (not just photos of young people), use neutral language (for example, avoiding words like “mature”), be clear about the type of experience needed rather than just the length of experience, and only ask qualification where necessary (more people go to university today than they did 30 years ago). The guidance advises against asking for an applicant’s age or date of birth and advises caution in asking for dates that any skills or qualifications were obtained.
Promotion
The guidance reminds employers that they cannot deny an employee a promotion because of age. To do so would be direct discrimination. It suggests that employers make sure job vacancies and promotion opportunities are mentioned to all relevant staff, regardless of age.
The guidance provides the example of Justine. Justine is excelling at her job, so applies for promotion. Her application is turned down because her employer is aware that away from work Justine has elderly parents. Her employer feels the promotion, on top of her responsibilities for her parents, would be too much for Justine. The employer made the decision without talking to her about its concerns or looking at and discussing any possible options, such as flexible working, that might have suggested a way forward for Justine. The guidance advises that, in this case, the employer’s decision is likely to be age discriminatory.
Performance management
The guidance makes some pretty broad comments about performance management: appraisals should be fair, conducted without preconceptions and without trying to put pressure on older workers to retire.
The guidance gives advice for managers when an employee raises retirement themselves. The guidance suggests that, if raised by the employee, managers can discuss it with their staff. But it warns against responding with any discriminatory remarks or actions. Some employers will offer mid-career “MOTs” to those employees who request them.
The guidance gives examples including that of an older worker who was not performance managed due to a belief they were about to retire.
Retirement
The guidance says that an employer cannot treat an employee detrimentally because they are thinking about retiring or drawing a state pension. An employer also cannot set a mandatory retirement age if that retirement age cannot be justified. To force an individual out of a business because of their age would be direct age discrimination.
When is age discrimination lawful?
Justification
The guidance sets out how both direct and indirect discrimination can be justified.
Employers can succeed in justifying discrimination in instances where its practice or provision is deemed a proportionate means of achieving a legitimate aim, with a business need outweighing the discriminatory effect on any affected persons (providing it is not solely based on cost). If less discriminatory ways to achieve their aims exist(ed), however, they should be taken.
The guidance states how the requirements of justification differ for direct and indirect discrimination. With direct discrimination, the employer must also show that the legitimate aim has some wider public benefits, such as helping young people get jobs or older people stay in work. In a case of indirect discrimination, however, an employer would not have to show any such wider benefit.
Over the years, case law has set out the circumstances in which discrimination has (and has not) been justified.
Occupational requirements
In very limited circumstances, it may be lawful for an employer to insist that employees or job applicants must be, or must not be, in a particular age group. An example would be the occupational requirement to be over 18 to sell alcohol, or to look a certain age in order to play the role of a grandparent in a play.
An occupational requirement must be:
crucial to the post (not just one of several important factors);
relate to the nature of the job; and
be a proportionate means of achieving a legitimate aim.
Comment on the new ACAS age discrimination guidance
The guidance (and the accompanying documents) provides a helpful new resource for employers. Employers should always be mindful of age discrimination issues and seek professional advice in the event of uncertainty.