Age Discrimination

What Is Age Discrimination?

Age discrimination occurs when an employer treats you less favourably, or puts you at a disadvantage, because of your age or the age group you belong to. Under section 5 of the Equality Act 2010, age is one of nine “protected characteristics” that are shielded from discrimination in the workplace.

The law protects people of all ages. Age discrimination isn’t just about older workers being pushed towards retirement. A 25-year-old who’s told they’re “too young” for a management role has the same legal protection as a 60-year-old who’s passed over for training because their employer assumes they’ll be retiring soon.

Protection covers every stage of your working life. Your employer cannot discriminate against you because of your age in relation to recruitment and job adverts, pay and terms of employment, training and development opportunities, promotion, transfers and redeployment, redundancy selection or dismissal.

Crucially, there’s no minimum length of service required to bring an age discrimination claim. Even if you’ve worked for the company for just a day, or you’re a job applicant who hasn’t started yet, you’re protected. This is different from unfair dismissal, which currently requires two years’ qualifying service.

The protection extends beyond employees. Workers, contractors, partners, office holders, apprentices and even the self-employed in certain circumstances are all covered by the Equality Act 2010.

Types of Age Discrimination

The Equality Act 2010 recognises four distinct types of age discrimination. Understanding which type applies to your situation is important because it affects what you need to prove and what defences your employer can raise.

Direct Age Discrimination

Direct age discrimination happens when your employer treats you less favourably than someone of a different age, and the reason for that treatment is your age. You need a comparator, either a real person of a different age who was treated better in similar circumstances, or a hypothetical one.

Direct discrimination doesn’t have to be intentional. Your employer might genuinely believe they’re acting reasonably, but if age was a “significant influence” on their decision, that can be enough. Common examples include being told you’re “overqualified” for a role (often code for “too old”), being passed over for promotion in favour of someone younger, or having a job application rejected because the employer wants a “dynamic, energetic team”.

The law also covers two less obvious forms. Discrimination by perception applies when you’re treated less favourably because your employer thinks you’re a particular age, even if they’re wrong. Discrimination by association covers situations where you’re treated badly because of someone else’s age, for example, being denied flexible working because your employer assumes your elderly parent will need too much of your time.

Indirect Age Discrimination

Indirect age discrimination is more subtle. It happens when your employer applies a provision, criterion or practice (PCP) to everyone equally, but it disproportionately disadvantages people of a particular age group, and it puts you personally at that disadvantage.

A classic example is requiring a qualification that takes several years to complete. In the Supreme Court case of Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, an employer required a law degree for promotion to the highest grade. This disproportionately affected workers aged 60 to 65, who couldn’t complete the degree before reaching retirement age. The Supreme Court found this was indirect age discrimination.

Other examples include job adverts requiring “10+ years’ experience” (disadvantaging younger applicants), “last in, first out” redundancy selection (disadvantaging younger workers with less service), and benefits linked to length of service over five years (which can disadvantage younger workers).

Harassment Related to Age

Under section 26 of the Equality Act 2010, harassment occurs when someone engages in unwanted conduct related to your age that has the purpose or effect of violating your dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Harassment can take many forms. It includes offensive comments or jokes about your age, calling someone an “old fossil” or dismissing a younger colleague as a “typical millennial”, deliberately excluding someone from social events or team activities because of their age, and making assumptions about someone’s capabilities based on their age.

Unlike direct and indirect discrimination, harassment can never be justified. Your employer also has a responsibility to prevent it. If they fail to take reasonable steps to stop age-related harassment, they can be held vicariously liable for the actions of their employees.

Victimisation

Victimisation protects you from being treated badly because you’ve raised a complaint about age discrimination, or because you’ve supported someone else’s complaint. If you raise a grievance about ageist comments from your manager and are then passed over for a pay rise or given a poor performance review in retaliation, that’s victimisation.

The protection also covers giving evidence in someone else’s discrimination claim or doing anything else connected to the Equality Act. Like harassment, victimisation can never be justified.

What Makes Age Discrimination Unique

Age discrimination stands apart from every other protected characteristic in one critical way: it’s the only ground where an employer can potentially justify direct discrimination. For race, sex, disability and other characteristics, direct discrimination is almost always unlawful, full stop. With age, the employer has a potential escape route.

“Age discrimination is unusual because employers can try to justify even direct discrimination. But the bar is high. Saying ‘we wanted someone younger’ or ‘we needed fresh ideas’ won’t cut it. The employer needs to show a genuine social policy aim and prove there was no less discriminatory way to achieve it.”

Tom Street Principal Solicitor, Tom Street & Co.

The Supreme Court clarified how justification works in two landmark cases decided in 2012. In Seldon v Clarkson Wright and Jakes [2012] UKSC 16, the court held that direct age discrimination can only be justified by reference to social policy or public interest objectives. These broadly fall into two categories: “inter-generational fairness” (such as creating opportunities for younger workers to progress) and “dignity” (such as avoiding the need to performance-manage older workers out of their roles). The employer’s own commercial interests aren’t enough on their own.

In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, the court confirmed that indirect age discrimination can be justified by a wider range of aims, including the employer’s own business needs. A real business need, such as recruiting and retaining staff of a particular calibre, can be sufficient.

In both cases, the employer must show that the discriminatory measure is “proportionate”, meaning it’s an appropriate way to achieve the aim, and there’s no less discriminatory alternative that would work just as well. The tribunal will weigh the importance of the aim against the severity of the discriminatory impact. Simply relying on cost savings is not a legitimate justification.

Common Examples of Age Discrimination at Work

Age discrimination can be obvious or very subtle. Here are some of the most common situations we see in practice.

Recruitment and Hiring

Job adverts that specify age ranges, ask for “recent graduates” or describe the team as “young and dynamic” can all amount to age discrimination. Asking about retirement plans at interview, or making assumptions about a candidate’s energy levels or technological ability based on their age, is also potentially unlawful. All job adverts should be age-neutral, focusing on skills, qualifications and competencies rather than age or years of experience.

Promotion and Career Development

Being passed over for promotion because your employer thinks you’re “too close to retirement” or “too young to manage a team” is direct age discrimination. The same applies to being excluded from training or development programmes based on assumptions about how long you’ll stay with the company.

Redundancy

Redundancy is a common area for age discrimination claims. Selecting older workers first, pressuring them into voluntary redundancy or early retirement, or using “last in, first out” as the sole selection criterion (which disadvantages younger workers with less service) can all be discriminatory. Redundancy selection should be based on objective, age-neutral criteria such as skills, performance and disciplinary record. Our redundancy rights guide covers this in more detail.

Retirement

The default retirement age of 65 was abolished on 1 October 2011. There’s no longer a fixed age at which employers can force you to retire. Forcing someone to retire, or putting pressure on them to do so, is direct age discrimination unless the employer can justify a compulsory retirement age for the specific role, which is a high threshold to meet.

Everyday Workplace Behaviour

Ageist language and stereotyping are more common than many employers realise. Comments like “you can’t teach an old dog new tricks”, referring to someone as a “dinosaur”, or dismissing a younger worker as “just a millennial” can all amount to harassment. In one reported case, an employee was awarded over £120,000 after being replaced by a younger worker when he went on temporary sick leave, with the tribunal finding that age was a motivating factor in his dismissal.

Exceptions to Age Discrimination

Objective Justification

The most important exception is objective justification. Both direct and indirect age discrimination can be lawful if the employer can show that the treatment is “a proportionate means of achieving a legitimate aim”. The employer bears the burden of proof.

Legitimate aims recognised by the courts include workforce planning and inter-generational fairness, health and safety requirements linked to the specific role, maintaining the dignity of employees by avoiding performance management of older workers, and genuine occupational requirements. The employer must demonstrate that their approach was proportionate, meaning no less discriminatory alternative was available and the aim was important enough to outweigh the impact on the affected employees. Vague or generalised justifications won’t succeed. The employer needs to produce evidence specific to their business and the circumstances.

Statutory Exceptions

Certain age-based distinctions are specifically permitted by law. The National Minimum Wage and National Living Wage have different rates depending on age. Statutory redundancy pay uses an age-related multiplier (0.5 weeks’ pay per year of service under 22, 1 week between 22 and 40, and 1.5 weeks from age 41), and this formula is exempt from age discrimination law. Service-related benefits of up to five years are automatically exempt. Benefits linked to longer service can still be lawful, but the employer must be able to justify them. Occupational pension schemes can set a minimum age for access (currently no lower than 55, rising to 57 from April 2028). Enhanced redundancy schemes that mirror the statutory formula but use higher multipliers are also generally permitted.

How to Bring an Age Discrimination Claim

Steps Before Making a Claim

If you believe you’ve experienced age discrimination, there are practical steps you should take to strengthen your position before considering a tribunal claim.

Gather evidence. Keep a written record of discriminatory comments, decisions and treatment. Save emails, text messages and any documents that show how you were treated compared to colleagues of a different age. Note dates, times, what was said and who witnessed it.

“If you suspect age discrimination, start keeping records straight away. Note down comments, save emails, and identify how colleagues of a different age were treated in similar situations. That evidence is what makes or breaks a tribunal claim.”

Tom Street Principal Solicitor, Tom Street & Co.

Raise a grievance. While not legally required, raising an internal grievance gives your employer the chance to address the problem. It also strengthens a future tribunal claim, because the tribunal expects you to follow the Acas Code of Practice on grievance and disciplinary procedures. If your employer unreasonably fails to follow the Code, the tribunal can increase your compensation by up to 25%.

Seek legal advice early. Time limits for discrimination claims are strict, and the earlier you get advice, the stronger your position. We offer a free initial assessment to help you understand whether you have a viable claim.

Time Limits

Under section 123 of the Equality Act 2010, you must bring an age discrimination claim within three months minus one day from the date of the discriminatory act. If the discrimination is ongoing (a “continuing act”), time runs from the date of the last act in the series.

Before you can issue a tribunal claim, you must contact Acas (the Advisory, Conciliation and Arbitration Service) for early conciliation. This pauses the time limit for up to six weeks (extendable to 12 weeks in total). If conciliation doesn’t resolve the matter, Acas issues a certificate that allows you to proceed with your tribunal claim.

Missing the time limit can be fatal to your claim. The tribunal does have discretion to extend it where it considers it “just and equitable” to do so, but this isn’t guaranteed and relying on an extension is risky. If you think you’ve been discriminated against, act quickly.

The Employment Rights Act 2025 will extend the time limit for most tribunal claims, including discrimination, from three months to six months. This change is expected no earlier than October 2026. Until then, the current three-month limit applies.

Compensation for Age Discrimination

One of the most significant advantages of a discrimination claim, compared to unfair dismissal, is that compensation is uncapped. There’s no statutory maximum on what the tribunal can award. A successful claim typically includes several components.

Financial Losses

You can claim for past loss of earnings (from the date of the discrimination to the date of the hearing) and future loss of earnings (the period the tribunal estimates it will take you to find equivalent employment). This can also include loss of pension contributions, bonuses and other benefits.

Injury to Feelings

This compensates for the emotional impact of the discrimination. Awards are calculated using the Vento bands, named after the case of Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871. The bands are updated annually.

Interest

The tribunal can award interest on discrimination compensation at a rate of 8% simple interest. For injury to feelings, interest runs from the date of the discriminatory act to the date of calculation. For financial losses, interest runs from the mid-point between the act and the calculation date.

Additional Awards

In some cases, the tribunal may also award aggravated damages where the employer’s conduct was particularly malicious or high-handed. If the discrimination caused a recognised psychiatric injury, personal injury compensation can be awarded on top of the injury to feelings award. The tribunal can also apply an ACAS Code uplift of up to 25% if the employer unreasonably failed to follow the Acas Code of Practice on grievance and disciplinary procedures.

How We Can Help

At Tom Street & Co. Solicitors, we specialise in representing employees in discrimination claims. If you believe you’ve experienced age discrimination at work, we can help.

We offer a free initial assessment of your case, either by phone or through our online form. Our team will review the facts of your situation, explain your legal options and advise on the strength of a potential claim. We handle cases from across England and Wales, working with clients remotely by phone, email and video conference.

For strong cases, we may be able to offer representation on a no win, no fee basis. Every case is different, so the first step is to get in touch and tell us what’s happened.