As with all strands of discrimination, age discrimination can come about ‘directly’ or ‘indirectly’.
Direct discrimination happens when you deliberately subject a person to some kind of detriment (which could include not employing them) because they are too old or too young. For example, you decide not to employ a capable and otherwise qualified 22 year old manager because you are worried about the reactions of the older members of the team he will be responsible for.
Indirect discrimination happens when you impose a requirement which, whilst not necessarily intended to disadvantage older or younger employees, has that effect, and cannot be justified. For example, you advertise a role as requiring 20 years’ experience, when really a couple of years or less would have been sufficient. While your advert didn’t say ‘young people should not apply’, you have effectively excluded young applicants (who obviously wouldn’t have 20 years’ experience).
Typical employment law pitfalls:
Inappropriate wording on job vacancies may give the impression of excluding older or younger workers and may attract speculative compensation claims. Similarly, the existing profile of an employer’s workforce may provide evidence to support allegations of discrimination. For example, if an employer consistently rejects older applicants and, on examination, is found to have a team of young employees. A litigious job applicant might decide to submit 2 applications, with different ages & names, but otherwise identical experience. If only the younger applicant is contacted for interview, an inference of direct discrimination might be drawn.
The normal 2 year qualifying period of employment (the length of service an employee usually needs to bring employment tribunal claims such as unfair dismissal) does not apply to unlawful discrimination. This means that employees with very short service (or job applicants) could take an employer to Tribunal alleging discrimination.
There is no upper limit on the compensation which a Tribunal can award for unlawful discrimination.
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