The days of retiring at age 65 with a gold watch are behind us. Australia’s ageing workforce is growing as employees stay in jobs beyond the traditional age of retirement. Unfortunately age discrimination is also on the rise. According to a 2017 study from University of South Australia’s Centre for Workplace Excellence, almost a third of Australians perceived themselves to have experienced some form of age discrimination while employed or looking for work over the last 12 months. The study surveyed 2,100 women and men aged 45 and over across the country. 1
According to an article published the same year in The Conversation, participants reported effects of age discrimination ranging from difficulty finding work due to age to little or no opportunities for promotion and training. 2
The findings affirm prior research from the Australian Human Rights Commission that 27% of Australians aged 50 and over had recently experienced age discrimination in the workplace. 3
Age discrimination is not something you have to just put up with. If you suspect that you’ve been treated differently due to your age, you may have a claim for age discrimination.
What is age discrimination?
Age discrimination is discrimination where a person is treated less favourably than another person of a different age in circumstances that are the same or not materially different. The person may be treated differently due to their actual age, or due to a characteristic that pertains or is imputed to pertain to persons of that age. Further, age discrimination can occur when an employer places conditions, requirements or practices that are not reasonable and have the effect of disadvantaging a person or persons of a certain age.
Employees are protected from discrimination at all stages of employment from recruitment to dismissal. Age discrimination can take a number of forms including specifying desired ages of applicants in a job advertisement, not hiring workers of a certain age, not offering training opportunities to workers of a certain age or making choices regarding redundancy based on age.
Although it’s common to associate age discrimination with older workers, employers can also discriminate against younger workers in various ways e.g. by not hiring younger workers based on the assumption that they will move on to another job quickly.
However, there are a number of exemptions for age discrimination, for example, it would not be discrimination where a junior employee (under 21) is paid less than a senior employee in accordance with an Award or Agreement. Further, it would not be discrimination for a hotel to refuse to employee someone to work at a bar who is under 18. 4
What should I do if I’m being discriminated against?
If you feel you’ve been discriminated against, you can make a complaint to the Australian Human Rights Commission at the federal level, or your relevant state anti-discrimination body.
These bodies’ complaint handling services are free and impartial. They can investigate the complaint and make an attempt to resolve the issue through a process known as “conciliation”.
Through this process parties get the chance to express their side of the story, talk through the issues and attempt to settle the issue in dispute. Most matters resolve at this stage, as the next step is to take the matter to Court, which can costly and time-consuming.
Should I seek legal advice?
If you’ve been discriminated against and are wondering if you should take legal action, contact us. We can look at the specifics of your situation and offer you personalised legal advice.
The laws around workplace discrimination can differ from state to state and time limits apply, so contact us as soon as possible to get started on your complaint. Navigating the law can be tricky, so it is beneficial to have legal representation in these matters.
Workplace discrimination can have a huge negative impact on both your professional and personal life. If you’ve been dismissed, demoted or denied an opportunity on the basis of any attribute including age, you may be eligible to make a complaint. For legal advice tailored to your particular situation, contact us at https://www.shine.com.au/service/employment-law/workplace-discrimination-lawyers.
Written by Shine Lawyers on November 2, 2018. Last modified: December 4, 2018.