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 an action, whilst not necessarily intended to subject detriment to older or younger employees, effectively does so, 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 may 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 – if an employer consistently rejects older applicants and on examination is found to have a team of young employees. A litigious job applicant may 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 may be drawn.
The normal 2 year employment period (the service an employee needs to bring about an employment tribunal claim) does not apply to unlawful discrimination, so employees with minimal (or job applicants) could take an employer to tribunal for breach.
Unlike standard dismissal cases, unlawful discrimination carries no upper limit on compensation that may be awarded.
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