Employees are vulnerable to discriminatory conduct based on their age. This is particularly applicable to older age groups. Individuals aged between 45 to 75 and over made up 75 per cent of age discrimination claims between 2018 to 2019.
People facing age discrimination at work are usually treated less favourably than others because of their age. A common example of age discrimination is where employers choose to terminate an employment contract on the basis that a particular employee is too old. This is an unlawful reason to dismiss someone and employers may risk contravening the Age Discrimination Act 2004 (Cth) as a result.
What is age discrimination?
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.