Dismissal and Age Discrimination
Can age be used as a factor in dismissal? Understand age discrimination in employment and when dismissal may be unlawful.
Last updated: 30 January 2025
Age discrimination in dismissal is unlawful, protecting both older and younger workers from being treated unfairly due to age.
Legal Protection
Equality Act 2010
Age is a protected characteristic:
- Direct discrimination (because of age)
- Indirect discrimination (policy affects age group)
- Harassment (related to age)
- Victimisation (for complaining)
Who's Protected
| Group | Protected? |
|---|---|
| Older workers (50+) | Yes |
| Younger workers | Yes |
| Middle-aged workers | Yes |
| All ages | Yes |
Protection works both ways - favouring young over old AND old over young is discrimination.
Types of Age Discrimination
Direct Discrimination
Treating someone less favourably because of age:
| Example | Why It's Discriminatory |
|---|---|
| "You're too old for this role" | Direct age reference |
| "We need fresh blood" | Code for younger |
| "You'll retire soon anyway" | Assumption based on age |
| "Too young for management" | Direct age reference |
Indirect Discrimination
Applying criteria that disadvantage an age group:
| Criterion | Impact |
|---|---|
| "Recent graduate" | Excludes older workers |
| "10+ years experience" | May exclude younger workers |
| "Digital native" | May favour younger |
| "Energy and dynamism" | May discriminate against older |
Objective Justification
Both direct and indirect age discrimination CAN be justified if:
- Proportionate means
- Of achieving legitimate aim
- This is unique to age - other characteristics rarely justifiable
Retirement
No Default Retirement Age
Since 2011:
- No compulsory retirement at 65
- Employer cannot force retirement at any age
- Employee chooses when to retire
- Treating retirement as automatic is discrimination
Employer-Justified Retirement Age
May be lawful only if:
- Legitimate aim (succession planning, dignity, etc.)
- Proportionate means
- Evidence supports necessity
- Alternatives considered
Very difficult to justify in most roles.
Occupations with Exceptions
| Occupation | Why Different |
|---|---|
| Airline pilots | Safety regulations |
| Police/fire officers | Specific pension rules |
| Armed forces | Operational requirements |
These have specific legislative frameworks.
Redundancy and Age
Selection Criteria
Unlawful to use:
- Age directly as criterion
- Length of service alone (disadvantages younger)
- "Last in first out" without justification
- Assumptions about capability by age
Lawful Approach
| Factor | Use |
|---|---|
| Skills | Relevant to retained roles |
| Performance | Objective assessment |
| Disciplinary record | Factual record |
| Qualifications | If genuinely needed |
Length of Service
Can consider length of service if:
- Objectively justified
- Rewards loyalty/experience
- Part of broader criteria
- Not sole determinant
Performance Management
Age Stereotypes to Avoid
Don't assume:
- Older workers can't learn new technology
- Younger workers lack commitment
- Certain ages are "past it"
- Energy declines with age
- Innovation only comes from young
Fair Performance Assessment
| Right Approach | Wrong Approach |
|---|---|
| Objective criteria | Assumptions about age |
| Individual assessment | Stereotyped views |
| Evidence-based | "They're slowing down" |
| Support offered | "Too old to change" |
Capability Dismissal
Age-Related Decline
If genuinely concerned about capability:
- Focus on specific performance issues
- Don't make age-based assumptions
- Assess objectively
- Offer support and adjustments
- Follow fair process
Medical Issues
If health affects capability:
- May also be disability discrimination
- Require occupational health assessment
- Consider reasonable adjustments
- Don't assume age-related
Warning Signs of Age Discrimination
Language and Behaviour
| Red Flag | What It Suggests |
|---|---|
| "Dinosaur" comments | Age-based harassment |
| Excluded from training | Assumption about future |
| "We need new ideas" | Code for younger |
| Passed over for promotion | May be age-related |
| "Slowing down" comments | Stereotyping |
Circumstances
Be alert if:
- Older workers disproportionately selected for redundancy
- Training only offered to younger staff
- Promotion patterns favour one age group
- Comments about retirement
- Pressure to take early retirement
Making a Claim
Tribunal Claims
Age discrimination claims:
- No qualifying service required
- Three-month time limit (less one day)
- Can combine with unfair dismissal
- ACAS early conciliation required
Burden of Proof
- Employee shows facts suggesting discrimination
- Burden shifts to employer
- Employer must prove non-discriminatory reason
Compensation
| Element | Amount |
|---|---|
| Injury to feelings | £1,100 - £56,200 |
| Financial losses | Uncapped |
| Aggravated damages | Where appropriate |
| Interest | On all elements |
Evidence
What to Gather
- Comments made about age
- Comparison with how others treated
- Pattern of decisions
- Statistics (if available)
- Emails and documents
- Witness evidence
Comparators
Compare treatment with:
- Employees of different ages
- Similar performance/circumstances
- Same decision-makers
- Similar time period
Employer Defences
Objective Justification
Employer may argue:
| Claimed Aim | Tribunal Assessment |
|---|---|
| Succession planning | Must show genuine need |
| Skills for role | Must be proportionate |
| Cost reduction | Rarely justified |
| Team dynamics | Usually not sufficient |
Non-Discriminatory Reason
May argue age wasn't factor:
- Performance issues (documented)
- Conduct issues
- Redundancy (genuine selection)
- Capability (evidenced)
Practical Guidance
If Facing Age-Related Dismissal
- Document everything - comments, patterns, comparisons
- Challenge assumptions - in writing
- Request reasons - in writing
- Raise grievance - if appropriate
- Seek legal advice - early
- Preserve evidence - before leaving
Questions to Ask
- Why is my age relevant?
- How are others my age being treated?
- What evidence supports this decision?
- Has my age been a factor?
- Why wasn't training/support offered?
At Exit
If negotiating settlement:
- Age discrimination strengthens position
- Compensation is uncapped
- Consider injury to feelings
- Tax treatment may differ
- Get legal advice
Special Situations
Early Retirement Packages
May be offered but:
- Cannot be mandatory
- Must be voluntary
- Cannot penalise refusal
- Must not be age-targeted
Pension Considerations
- Cannot be dismissed to prevent pension access
- Pension age not a dismissal reason
- Enhanced packages must be voluntary
- Consider financial advice
Healthcare and Insurance
If employer cites:
- Insurance costs increasing with age
- Healthcare premiums rising
These are generally NOT justification for dismissal.
Key Points
For Employees
- Age discrimination is unlawful
- No mandatory retirement
- Both direct and indirect discrimination covered
- Can be objectively justified (rare)
- Compensation is uncapped
Warning Signs
- Comments about age
- Exclusion from opportunities
- Pressure to retire
- Assumptions about capability
- Disproportionate selection for redundancy
Related answers
Automatically Unfair Dismissal Reasons
Some dismissal reasons are automatically unfair regardless of procedure. Learn what these are and that no minimum service is required.
Dismissal and Discrimination
When is dismissal discriminatory? Understand your rights if dismissed because of a protected characteristic.
Unfair Dismissal Compensation
How much compensation can you get for unfair dismissal? Understand basic awards, compensatory awards, and how they're calculated.
Frequently Asked Questions
- Can my employer dismiss me because of my age?
- No. Age is a protected characteristic under the Equality Act 2010. Dismissal because of age - whether young or old - is unlawful discrimination unless the employer can show objective justification.
- What about mandatory retirement ages?
- There's no default retirement age. Employers can only require retirement at a specific age if they can objectively justify it - which is difficult. Most forced retirements are now age discrimination.
- What's the compensation for age discrimination dismissal?
- Discrimination compensation is uncapped and can include injury to feelings (typically £1,100-£56,200), financial losses, and aggravated damages in serious cases. It's often higher than unfair dismissal alone.