Whether favouring younger customers over old, or targeting a job at more mature works, age discrimination in any form is not legal. The Equality Act 2010 prevents employers discriminating because of age and prohibits:
- Direct Discrimination
- Indirect discrimination
- Post employment discrimination
- Compulsory retirement
So how do these affect your hospitality business?
It is unlawful to treat anyone less favourably than others because of their actual or perceived age or because they associate with someone of a particular age unless this can be objectively justified (see below). So you can’t decide not to employ someone, or to deny them a promotion, because of their age unless you have an objective justification.
Indirect discrimination means applying a criteria or policy which has the effect of disadvantaging employees of a certain age. For example restricting a post to “recent graduates” is likely to indirectly discriminate against the over 30s, as recent graduates are likely to be in their 20s, unless you have an objective justification. Equally, asking for 10 years’ experience in the industry is likely to discriminate against younger applicants who haven’t been working that long.
Direct and indirect discrimination can be objectively justified if it is a:
- proportionate means (of)
- achieving a legitimate aim
If the criteria you apply to your working practices is aimed at encouraging loyalty, then you must have evidence that it actually does that. The business benefit must outweigh the discriminatory effect and there should be no other reasonable alternative to achieve your aim.
Harassment related to age is also forbidden. This is unwanted conduct which has the effect of violating a person’s dignity or creating a degrading or hostile environment for them. It may be intentional bullying but could also be unintentional or subtle. It covers name calling or nicknames or other upsetting behaviour. It may be about the person’s age (real or perceived) or about the real or perceived age of those people that the person associates with. It could be a general culture which tolerates age-related jokes. For example if someone is constantly told that they are “wet behind the ears” or an older employee is nicknamed “Gramps”, this is harassment
Employer’s liability for acts of other staff
As an employer you are liable for the acts of managers and other staff either at the workplace or at a place associated with the workplace such as a work social gathering – for example if a group of young employees regularly go out for a drink together and do not invite an older member of staff this could be harassment. As an employer you could be ordered to pay compensation for the remarks of your staff unless you can show that you took reasonable steps to prevent harassment – see below.
Harassment by customers
If an employee is harassed by a customer because of their age – eg making remarks about a barmaid being young enough to be their daughter, or an older barmaid being old enough to remember the war – this could amount to age related harassment and they could bring a claim against you as their employer. If you do not take swift action to stop such unwanted behaviour you may face an age discrimination claim.
If an employee brings a complaint of age discrimination or harassment, and is then treated detrimentally because of this (say that they are not promoted or are called names by colleagues), then this is victimisation. An employer who does not take reasonable steps to prevent this victimisation may find they face paying out compensation.
Requiring an employee to retire when they reach a set age is direct discrimination unless it can be objectively justified.
Discrimination is not unlawful if there is an objective justification for it.
There are also some exceptions set out in the Equality Act:
- Service-related benefits – it is still possible to give service based rewards such as additional holiday, pay or share options for service up to 5 years.
- National Minimum Wage – the NMW bands are directly discriminatory but they are covered by a special exemption in the Equality Act. Employers are able to pay their workers under 18, 18-20, 21-24 and over 25 different rates of pay as long as those under 25 are still getting less than the NLW.
- Redundancy – redundancy payment based on the statutory scheme is not unlawful discrimination as the Government believes that these age bands are justified. There is an exemption in the Equality Act for enhanced redundancy schemes that are similar to the statutory pay scheme (using the same age bands and multipliers). There are certain permitted changes – for example, the cap of a week’s pay can be disapplied and multipliers can be more than 1.
- Insurance benefits – it is generally not unlawful for employers to cease to provide health insurance, life insurance or medical insurance once an employee reaches 65.
Cost of a discrimination claim
Someone who has been discriminated against on the grounds of their age can bring an Employment Tribunal claim for damages for injury to feelings and for financial loss. There is NO limit on the amount of damages that can be awarded, so ensuring you do not find yourself in such a situation in the first place is important. The Tribunal can also make recommendations for reducing the impact of the discrimination on the claimant.
Practical points for employers
- Recruitment: don’t put age criteria in applications and don’t refuse to offer a job based on someone’s age. Don’t use age related phrases such as “youthful enthusiasm required”. Base decisions on skills and abilities, makes notes of this during interview and keep the notes for 12 months.
- Remove age and date of birth from application forms and avoid asking when qualifications were obtained unless this is objectively justified.
- Think whether there is a genuine business benefit in giving employees long service awards e.g. a gold watch for 10 years. If not this will be age discrimination.
- Review your policies and handbook. Check that benefits such as redundancy payments do not discriminate on age grounds.
- Do not include a fixed retirement age in your company handbook or policies as this is direct discrimination. Allow an employee to retire when they are ready and allowed a phased retirement if it suits the employee and the business.
- Take action against customers who are offensive to staff because of their age.
- Put up signs making it clear to customers that harassment will not be tolerated.
- Have a reporting procedure for complaints of harassment by other staff or customers/contractors. Managers should be aware of this and trained in its operation.
- Act immediately if you get a report of harassment by a member of staff or a customer. Demonstrate to the employee that you have taken their complaint seriously.
Reasonable steps to avoid harassment
- In order to defend a claim by an employee that they were harassed by another member of staff you will need to show that you have taken reasonable steps to avoid harassment. Such steps might include having an age discrimination policy which is accessible to all. Staff should be aware of the policy and managers/supervisors should receive training. This should cover decisions about work allocation and appraisals as well as dealing with bullying and harassment.
ACAS have produced a guide for employers which includes a useful age health check
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Similarly, the Equality Act 2010 requires businesses to make their premises and services more accessible to disabled people. So not only is it important to ensure you are not missing out on business by excluding customers who can’t access your premises or facilities, it is also unlawful to do so. For the full picture download our free guide:
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.