Two real examples of direct age discrimination and what happened next

Age is one of the 9 characteristics protected under UK law, which means that your employer can’t treat you differently because they think you are too old or too young.

If you think you’re being discriminated against because of your age, you need to show some evidence of this, and your employer needs to show there were other reasons for this treatment.

We look at a couple of different examples of direct age discrimination that have been brought to the Employment Tribunal, and why the claims failed or succeeded.

Example 1: a direct age discrimination case that failed  

What happened:

A Mechanical Design Engineer, Antonio, was placed on furlough twice in early 2020. In August that year, he was made redundant due to a reduction in business, as a result of the impact that Covid-19 had on markets.

He first appealed against his redundancy using his employer’s internal process, one of the grounds being age discrimination, but this appeal was dismissed.

He then brought claims to the Employment Tribunal, including a claim for direct age discrimination. This was on the basis that at 58, he was the oldest of the 9 engineers in his pool for redundancy selection, and there had previously been a “vague conversation regarding retirement age”.

One of the criteria for redundancy selection was ‘Future Prospects’. Antonio only scored 5/20 for this. He argued that this measure in itself was potentially age discriminatory.

The decision

To show age discrimination, the first test is for the Claimant (in this case, Antonio) to show some behaviour that suggests age discrimination. If they can do this, then it’s up to the Respondent (the employer) to prove they had reasons for this behaviour that weren’t discriminatory.

Antonio’s claim for direct age discrimination failed on the first test, because he needed to show more evidence than just the facts that he was older and he was treated differently.

Read the full decision in Antonio’s case on the Government Publishing Service

What you can learn from this

If you are making an age discrimination claim to the Employment Tribunal, consider what evidence you can provide that will persuade them of a clear link between the way you were treated and your age compared to others in a similar situation. 

Example 2: a direct age discrimination case that succeeded

What happened

Nazir had worked as a print room manager at a company that provided printing services to law firms since 2001. 

After around 15 years at the company, there started to be a number of issues between Nazir and his employer, in relation to things like dress code and overtime. He tried to resolve these informally, but his informal requests were ignored - he had sent a lot of emails which no-one replied to.

He went on to raise a formal grievance. He had already been on sick leave while they were investigating this grievance, and the company directors then suspended him (on full pay), so Nazir didn’t go back to work at all during this time. The grievance was denied, so he appealed. He had a return to work meeting after appealing, but he wasn’t allowed to go back to work as his employer said they had reached a “stalemate” and hadn’t been able to resolve the issues between them.

The appeal was also denied, and he was sent a letter inviting him to a disciplinary hearing. This cited various issues, including his ongoing dispute around company practices such as the dress code and overtime, and the alleged breakdown of his relationship with the directors. 

Nazir was dismissed after this hearing. He appealed his dismissal, but this was denied.

At this point, he made claims to the Tribunal, including one for direct age discrimination on the basis that he was older and therefore more expensive than the people who replaced him.

The decision

To prove age discrimination, Nazir had to first prove some facts that suggested that there had been discrimination. The Employment Tribunal felt that there was ample evidence for this, based on a number of different behaviours from his employer, including: 

• Promoting someone younger to his position while he was absent. His employer initially tried to deny that this had happened, and withheld a letter which confirmed the promotion from the Tribunal.
• Showing unreasonable and hostile conduct towards Nazir, for example by dismissing him without a proper investigation, and by not replying to his emails. 
• Writing him a letter that said he was "finding it difficult to keep up with the pace of change" and suggested he should have remedial management training at the most basic level. The Tribunal found that the language came uncomfortably close to suggesting a stereotype of someone who has been employed for a long time being set in his or her way. 

Burden of proof shifts

Once Nazir had proved this, it was up to his employer to show that this behaviour was not discriminatory (this is known as “shifting the burden of proof”). 

The employer argued that there had been a breakdown of mutual trust and confidence caused by the way Nazir had behaved. However, the Tribunal found no evidence of this, and went so far as to say that the employer had misrepresented Nazir’s conduct and had misled the Tribunal. 

Nazir was successful in his direct age discrimination claim and was awarded over £50k in compensation.

Read the full details of Nazir’s case on the Government Publishing Service 

What you can learn from this

Direct discrimination is rarely obvious, as it is affected by unconscious bias. The law gives a two-stage test: 

• First, you need to show whether the “discrimination can be inferred” from the facts - that is, there is behaviour that looks like discrimination on the face of it. 
• If you can do this, your employer has the chance to prove an alternative, non-discriminatory explanation for the treatment, or to justify the treatment. If they can’t do this, then your claim will succeed.
  

If your employer’s behaviour has been very obviously discriminatory, then the Tribunal may be able to go straight to making clear positive findings about this, rather than having to go through the two-stage test.

How to progress your direct age discrimination claim

Age discrimination can affect you at any point in your career - whether you are being sidelined by colleagues because you are ‘too young’, or passed over for a job opportunity because you are ‘too old’.

If you think you may have a case for age discrimination, our platform can help you understand the law, gather your evidence, and start a claim in the Employment Tribunal. Sign up for your free account.