CHAPTER ONE – INTRODUCTION
The aim of this book is to provide a step-by-step guide to all aspects of claims of age discrimination at work. It is designed to be of assistance not only for employment practitioners, but for practitioners in other areas and litigants in person alike. As this is a practical guide, we have deliberately not focussed on detailed history and jurisprudence except where necessary and useful. Wherever possible when describing various concepts, we have used examples relating specifically to age rather than other protected characteristics. These may come from our own experience, from the helpful online database of employment tribunal judgments and of course from appellate cases.
Age as a protected characteristic
‘Age is different’ held the Supreme Court when comparing it to other protected characteristics in Seldon v Clarkson Wright and Jakes (and Secretary of State for Business Innovation and Skills, and Age UK – Intervenors) [2012] UKSC 16, [2012] IRLR 590. Age is, Lady Hale held, a continuum which changes over time and is not binary in nature. As such, it is unusual amongst protected characteristics in that those who at one point in their lives may benefit from privilege or suffer discrimination as a young person will likely go on to benefit or suffer as an older person.
Age is perhaps the protected characteristic that is taken the least seriously of all nine protected characteristics under the Equality Act 2010 (‘EqA’). In 2018, a survey by the Equality and Human Rights Commission (‘EHRC’), revealed that 54% of the 2800 people surveyed thought that age discrimination was ‘not at all’ or ‘only slightly’ serious. This is perhaps reflected in the fact that age was the last of the nine characteristics to be protected (in 2006) and of course in the continued prevalence and acceptance by society of jokes about age, even on mainstream greetings cards.
Moreover, as part of the same study, the EHRC published a ‘prejudice barometer’ which suggested that 26% of adults in Britain have experienced some sort of age discrimination. This is the highest figure amongst all protected characteristics but is not reflected in the proportion of the number of claims brought in employment tribunals.
Whilst age discrimination is typically thought of as prejudicing older people, it can apply to those of any age. Stereotypes such as declining mental acuity, being ‘out of touch’ and a reduction in physical capability may be applied to older people whereas younger people may be unreasonably considered to be naïve, inexperienced and immature.
Age is also unusual in that it is the only protected characteristic for which there is a defence to direct discrimination of justification. This is usually only available in indirect discrimination cases. Although this in theory makes direct age discrimination cases easier to defend, statistical evidence submitted to a parliamentary subcommittee by Prof Alysia Blackham in November 2023 showed that in practice such a defence was only used in 7 out of 1208 age discrimination cases and only succeeded in one of those cases. This can be found at https://committees.parliament.uk/written
evidence/126028/html/#_ftn42
In her study of tribunal decisions up until 2019 (Enforcing rights in employment tribunals: insights from age discrimination claims in a new ‘dataset’ – Legal Studies Vol 41), Prof Blackham also found that the median age of claimants was 57. This demonstrates the unsurprising fact that the majority of claims for age discrimination come from older people. However, it must not be forgotten that the law applies to all age groups – in November 2024, a survey commissioned by UK Youth and KFC of 9000 people aged 16-25 years found that over 90% had encountered negative treatment at work because of their age. Where we can, we have provided examples of discrimination against a variety of ages.
Scope of this book
This book is designed to cover all aspects of the various possible claims under Part 5 EqA – i.e. discrimination relating to work. We have focussed on employment relationships (in the Equality Act sense), which are the most prevalent type of claims under Part 5. It is not intended to provide guidance on discrimination in relation to education nor in relation to services and public functions. This said, the principles explained may provide a useful basis with which to understand the remainder of the EqA.
In chapters 2-4, we deal with direct and indirect age discrimination and how those claims can be justified. We go on to discuss harassment and victimisation in chapters 5 and 6. Chapter 7 discusses issues surrounding retirement such as a mandatory retirement age and how to discuss retirement plans with employees. We then go into more detail on the burden of proof in discrimination claims in chapter 8. Chapter 9 deals with the various remedies that are available in discrimination claims, including guidance on the various ways awards can be reduced. Chapter 10 – How to bring an age discrimination claim, provides details on who can claim and practical guidance on how claims proceed, from pleadings to hearings to appeals. Appendices 1 and 2 give examples of pleadings – particulars of claim and grounds of resistance in hypothetical age discrimination cases. Appendix 3 is a template list of issues, a document whose importance is often underestimated.
As noted above, we have tried to provide as many authentic case examples as possible in order to give readers a feel for how age discrimination claims work in reality. Readers are reminded however that tribunal judgments at first instance are not binding on other employment tribunals and that the same facts could lead to different outcomes with different tribunal judges.
How wide does protection from age discrimination extend?
Part 5 EqA explains both who is protected and who is liable for discrimination under that Part. Employees are of course the main subject of protection from discrimination. The definition of an employee is wider under the Equality Act than under other legislation such as the Employment Rights Act 1996 (which governs unfair dismissal amongst many other matters). Under section 83 EqA, the principal definition of employment is ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. This covers a broad range of people including those described as ‘workers’ and contractors hired personally to do work. Please see Chapter 10 – How to bring an age discrimination claim, for more detail on who is protected and who is liable.
Protection from discrimination extends from the application process for jobs, all the way through employment to post-termination discrimination such as failing to respond to an appeal against dismissal or failing to give a reference due to the claimant’s age.
Intersectionality
UK employment law focusses on discrimination related to or because of nine separate protected characteristics. Often however individuals may consider themselves to have been treated less favourably because they belong to a group with more than one protected characteristic. Such groups may include older women, young black men and older disabled people. Young black men, for example, may be subject to stereotypes and a combination of stigma that means they are treated worse than older black men, young white men and young white women. Although there is no prohibition (yet) in the EqA against this sort of combined discrimination, as explained in Chapter 2 Direct Age Discrimination, our view is that with selection of the right comparator, current discrimination law is highly likely to be sufficient to succeed on such claims, simply by claiming on the basis of three separate protected characteristics, further or in the alternative.
The idea of combined discrimination should be distinguished from circumstances in which claimants allege they have been subject to different types of discrimination on multiple protected characteristics. The former can be said to involve discrimination because of stigmatisation of specific groups with certain complex characteristics. The latter may often involve piecemeal allegations that an individual has been treated less favourably in a number of different instances for a number of different reasons that are not said to be connected. Victimisation and/or whistleblowing may also be added into the mix.
In our experience, tribunals will often raise an eyebrow at pleadings which allege that a claimant was subject to multiple acts of discrimination for different reasons or alternatively that one specific act was discrimination due to multiple protected characteristics. For example, an employee who alleges he was not promoted because the decision maker did not like middle-aged people, Hindus or disabled people and because he had raised a protected act. Claimants are unlikely to succeed on all four of those claims. As more reasons are added, it becomes more difficult to prove what the effective cause for the treatment was. In this way, a potentially strong claim could be undermined by a focus on three weaker claims. In other words, the claimant ends up falling between two (or more) stools. We therefore advise that claimants carefully consider which are their best arguments and put those forward.
One final category of intersectional case is where it is not clear upon which protected characteristic a claimant should rely because they overlap so much in that particular case. Less favourable treatment due to menopause may be said to be due to age, sex or disability (see Chapter 2 Direct Age Discrimination). Women over the age of 50 represented the fastest-growing group in the workforce, according to the ‘Menopause and the workplace’ report published by the Women and Equalities Committee on 28th July 2022; yet the report also found that employers’ lack of support for menopausal symptoms was pushing highly skilled and experienced older women out of the workforce. The protection of older women from prejudicial treatment and seeking to level the playing field to ensure they can make a valuable contribution to work in this country is likely to continue to remain an important issue, particularly given the recent media attention given to the menopause, thanks to celebrities like Davina McCall.
Prof Blackham’s study (see above) found that when claims for age discrimination were pleaded with claims founded on other protected characteristics, the most common linked claims were for disability, sex and race. She noted in her evidence to parliament that age ‘touches everything’ and exacerbates other forms of disadvantage, meaning that discrimination because of race or sex may be made worse by additional discriminatory attitudes about the age of the victim. These complexities are not necessarily reflected in statute but we feel that the guidance in this book shows that tribunals have the discretion and experience to make compensation reflect a wide range of factors.
Where is age discrimination heading?
The population of the UK is ageing due to increased life expectancy, falling birth rates, migration patterns and the legacy of a post-war baby boom. This demographic shift is reshaping our labour market. As the workforce in the UK grows older, both opportunities and challenges can be presented. Older individuals today are living longer, healthier lives, often with a desire—and in many cases, a need—to remain economically active well into what was once considered retirement age. As a result, the workforce is becoming increasingly age-diverse, spanning multiple generations, from school leavers to septuagenarians. However, with this growing age diversity comes a pressing need to confront the biases, stereotypes, stigma and systemic barriers that still persist in the world of work. Age discrimination—whether overt or subtle—remains a pervasive yet underacknowledged issue. While society has made progress in addressing inequalities around gender, race, and disability, ageism has historically too often been overlooked, treated as less urgent, or even accepted as an inevitable part of the employment experience.
More recently, age discrimination in the UK has garnered increased attention, highlighting both persistent challenges and emerging efforts to address them. The Women and Equalities Committee has called for stronger legal protections against age discrimination, including the appointment of a Commissioner for Older People’s Rights in England, mirroring the model in Wales. According to the Financial Times (“Age discrimination payouts are getting bigger”, published 20th February 2025), there was a surge in tribunal compensation awards to age discrimination claimants in 2022-2023, when the average pay-out reached £103,000 (the equivalent the previous year was £14,000). Although the 2022-2023 figure was based on only 12 cases, including some very senior executives, this underscores the financial and reputational risks employers face when neglecting age-related issues.
Justifying discrimination involves arguing that the act was done in order to achieve a legitimate aim. For mandatory retirement cases, the most oft cited and accepted aims are ‘intergenerational fairness’ and ‘dignity’ (see Seldon). The former involves considerations of providing job opportunities for younger people and the latter refers to the notion that older employees should not be subject to what might be humiliating capability processes at the end of the career. It should be noted however that these aims ought to reflect the values of society and may therefore change over time. For example, one could argue that it is patronising and paternalistic to avoid capability processes for a particular age group and that it reflects assumptions that that group is less thick-skinned. Equally, with changes to life-expectancy and increased financial pressures for pensioners, it may not always be legitimate to expect older people to ‘make way’ for the younger generation.
However the law develops, what seems certain is that the importance and awareness of age discrimination is only going to increase.
Sources
The authors recommend to those encountering the law of age discrimination for the first time, and/or those making or facing age discrimination claims in the employment tribunal, to consult the excellent practical guidance available from ACAS and the Equality and Human Rights Commission, in particular:
https://www.acas.org.uk/age-discrimination