Employees in the workplace can be vulnerable to discrimination for many reasons, including their age. You may be subject to age discrimination as a member of an older or younger age group, although it is most common for older employees.
Three-quarters of all age discrimination claims filed between 2018 and 2019 were made by people in the 45 to 75+ year age group.
Age discrimination can come in many forms, and the most common example is having your employment terminated due to your age. Dismissing an employee based on their age is unlawful, and employers may face a range of consequences for doing so.
The age discrimination lawyers at McDonald Murholme offer expert advice for employees and employers. To discuss an age discrimination claim with our team, please contact us today.
McDonald Murholme – Discrimination Lawyers and Advisers
What Is Age Discrimination? Our Lawyers Explain.
According to the Age Discrimination Act 2004 (Cth), there are two different forms of age discrimination. These are direct discrimination and indirect discrimination. Often evidence of age discrimination is very much concealed by the employer. Employees often have to rely upon not so subtle comments such as “When are you thinking of retiring….Wouldn’t you like to go and join your friends on a cruise?” It can include exclusion from events such as employment events where there is lots of noise and young people. Under the Fair Work Act, once there is some evidence of the discrimination, the onus falls on the employer to prove that there was no discrimination. That is necessary as the employer knows best the reasons behind any dismissal law demotion and needs to disclose its reasoning for the scrutiny of the Court. It is the role of the Court to draw the relevant inference whether the evidence be weak or strong.
Direct Discrimination
Direct age-based discrimination occurs when two people in similar positions are treated differently based on their age. For example, Deloitte Australia had a retirement age of 62. A recent landmark case alleged that this policy is in breach of age discrimination laws. This is because anyone aged 62 or older is being treated less favourably than anyone younger than 62.
Indirect Discrimination
Indirect age-based discrimination occurs when a neutral condition of employment disadvantages individuals of a certain age. For example, a business may require all employees to have a high level of dexterity. But if a high level of dexterity is not necessary for the role, this policy may be in contravention of the law. This is because older people are more likely to have a lower level of dexterity, meaning they are disadvantaged by the policy because of their age, even though the policy applies to people of all ages.
McDonald Murholme – Discrimination Lawyers and Advisers
McDonald Murholme will advise employers to ensure they are not accused of being in breach of the Age Discrimination Act 2004 (Cth).
Call 9650 4555 today or enquire online for a fast reply.
McDonald Murholme – Discrimination Lawyers and Advisers
Get Advice from Expert Age Discrimination Lawyers in Melbourne, Sydney, Canberra, Adelaide, Brisbane and Across Australia
If you believe you are being unfairly treated in the workplace due to your age, talk to an employment lawyer who has acted for thousands of people like you. McDonald Murholme can defend your rights and provide advice to help you achieve the best possible outcome. This may include reinstatement of employment, compensation, and protections to prevent future age-based discrimination in the workplace.
McDonald Murholme can also advise employers to ensure they are not in breach of the Age Discrimination Act 2004 (Cth).
Call 9650 4555 today or enquire online for a fast reply.
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The McDonald Murholme team is headed by Mr Alan McDonald.
Contact UsAs highlighted by the prevalence of age-based retirement requirements, age discrimination remains a problem in the workplace. Studies have estimated that one-third of employers are reluctant to hire mature aged workers and that over one-quarter of Australians aged 50 years and over had experienced some form of age discrimination in the last two years. In 2017-2018 the Australian Human Rights Commission received 2,046 complaints, 8 per cent of which were lodged under the Age Discrimination Act 2004 (Cth). These statistics are concerning, especially given the increasing life expectancy of Australians.
The Age Discrimination Act 2004 (Cth) provides for two different types of discrimination: direct and indirect. Direct discrimination occurs when one person treats the aggrieved person less favourably than another person in similar circumstances based on their age. A good example of this is age-based retirement requirements. Recently, a landmark case has been commenced alleging that Deloitte Australia’s retirement age of 62 breaches age discrimination laws. Andrew Jewell, a principal at employment law firm McDonald Murholme, said if Mr Brown is successful in his case it could prompt similar claims from partners at other big four firms who impose specific retirement ages. Here, a person who is over the age of 62 is being treated less favourably than someone under the age of 62 because of their age.
Indirect discrimination occurs when a neutral condition, requirement or practise has the effect of disadvantaging those of a similar age to the aggrieved person. For example, a condition that requires an employee to have a high level of dexterity where it is not necessary for the employment may contravene the Age Discrimination Act 2004 (Cth). This is because older people are less likely to have a high level of dexterity compared to younger people. Here, older people are being disadvantaged by their age, even though the condition appears to be neutral on its face.
If you have experienced age discrimination and were not able to resolve the matter with your employers a complaint can be lodged in the Australian Human Rights Commission. Once the complaint is received, the President of the Commission can investigate and try to resolve the dispute by conciliation. If unsuccessful, your claim can be lodged in either the Federal Circuit Court or the Federal Court. The court is able to award remedies such as compensation, an order that the discriminator does not repeat the action, and reinstatement of your position.
The Age Discrimination Act 2004 (Cth) provides for some circumstances that will not constitute age discrimination:
- where the discrimination provides a bona fide benefit to persons of a particular age. For example, the provision of a Seniors Card treats younger people less favourably but is not unlawful discrimination because it is a good faith benefit provided to the elderly;
- The act is intended to meet a need that arises out of a particular age group. For example, young people often have a greater need for welfare services than other people. This means that youth welfare services are not discriminatory against older people;
- The act is intended to reduce the disadvantage experienced by people of a particular age. For example, when a person over the age of 45 is dismissed, they are entitled to one extra week of notice of termination. This is in recognition of the difficulties a person of this age may face in securing suitable alternative employment;
- A certain age is an inherent requirement of the job. A good example of this is the case of Qantas Airways v Christie (1998) 193 CLR 289. In this case, Christie, a 60-year-old international airline pilot was dismissed based on age. However, being below the age of 60 was held to be an inherent requirement of the position because most countries prohibited pilots over the age of 60 from flying in their air space.
If your age discrimination falls into one of these categories, it will not have been unlawful discrimination.
Talk to an employment lawyer who has acted for thousands of employees like you.
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