FAQs: Age Discrimination for Employers

1. Can I require an applicant to have a specific amount of years’ experience?
2. We are promoting a younger employee who has been at the company less time that another older member of the team. How can we ensure that this is not age discrimination?
3. One of our employees who is the oldest in their team is struggling with the new IT systems we have put in place. How can we raise this with them without inadvertently discriminating against them due to age?
4. My company is going through a restructure and is making one of our employees redundant. The employee is 60 years old, and has been with the company for 30 years. How do we ensure that this is not age discrimination?
5. One of our employees has complained about age discrimination because they are not invited out for drinks with the rest of the staff after work. The employee is the oldest in the team. Is this age discrimination within the workplace?
6. Can employee length of service benefits be age discrimination?
7. One of my older employees has been performing poorly for a while. They are past retirement age but do not want to retire. Can I insist that they retire?
8. What should we do if our employee has changed their mind about retiring?

Can I require an applicant to have a specific amount of years’ experience?

By doing this you could be discriminating indirectly against younger applicants.

To ensure compliance with age discrimination law, the job advert should state an applicant needs to meet a certain level of competence or knowledge. Adverts should avoid ageist language such as ‘youthful’ or ‘mature’.

You can use phrases like ‘recent graduate’ or ‘experienced’ when these are actual requirements of the job.

We are promoting a younger employee who has been at the company less time that another older member of the team. How can we ensure that this is not age discrimination?

You must give clear reasons as to why one employee has been promoted over another. This must be because of their skills and performance. You must not make assumptions about an employee’s attributes based on their age.

You should never discourage any employee with the necessary skills, knowledge & experience, young or old, from seeking to progress in their job role.

One of our employees who is the oldest in their team is struggling with the new IT systems we have put in place. How can we raise this with them without inadvertently discriminating against them due to age?

You should treat all employees fairly and consistently when assessing performance. You should not ignore under-performance because of age. You must give the employee the opportunity to improve their performance using a Performance Improvement Plan. This might include providing additional training or a mentor.

My company is going through a restructure and is making one of our employees redundant. The employee is 60 years old, and has been with the company for 30 years. How do we ensure that this is not age discrimination?

You must implement a fair selection criteria – redundancy decisions should be based on the performance and skills of the employees you are considering for redundancy, not stereotyped ideas about their age.

You must carry out a fair redundancy process.

One of our employees has complained about age discrimination because they are not invited out for drinks with the rest of the staff after work. The employee is the oldest in the team. Is this age discrimination within the workplace?

This could potentially be viewed as age discrimination if they are the only one who was not invited and everyone else is much younger.

Employees should be encouraged to be inclusive. Excluding a fellow employee can be detrimental to them and their working relationships.

You should regularly ask employees how they are doing and ensure any rifts between employees is dealt with.

Can employee length of service benefits be age discrimination?

Benefits awarded based on length of service up to 5 years are fine, for example additional holiday days.

If you award additional benefits to individuals based on their having longer than 5 years’ service, you must be able to show that you reasonably believe this fulfils a business need. You should be able to show evidence that you have considered this business need.

One of my older employees has been performing poorly for a while. They are past retirement age but do not want to retire. Can I insist that they retire?

Up until April 2011, employers could force workers to retire at 65, however this has now been scrapped, meaning that there is no legal retirement age and employers cannot force their workers to retire.

However, there are some exceptions to the above rule, employers can legally make a worker retire, as long as they have a good reason. Examples could be:

• The job requires the worker to have a certain level of mental or physical abilities, or
• The job has an age limit set by another law.

If you force an employee to retire, you must follow a fair procedure.

You have the right to dismiss employees if they are underperforming, however this decision must be based on performance and not age.

Be aware that if their underperformance is due to a disability caused by age such as arthritis then reasonable adjustments must be considered.

What should we do if our employee has changed their mind about retiring?

Once an employee has submitted in writing their intention to retire, including their leave date, you are under no obligation to allow the employee to continue working beyond the stated leave date. You should discuss with your employee to decide what is best for your business.

For expert advice on best practice for employers on age discrimination at work, contact our Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk.