Information & advice

There are certain circumstances where it could be lawful for employers to discriminate on the grounds of age, when:

• it can be justified by employers
• there are exceptions to the law

 

You should also read our sections on retirement and looking for work for exemptions relating to people over 65.

 

Where age discrimination can be justified by employer

There may be certain circumstances when an employer can justify discriminating on grounds of age, but they have to prove with evidence that it’s a proportionate way of achieving a legitimate aim.  Proportionate means that what the employer is doing has to be appropriate and necessary, so they would have to show that all the following apply:

• there was no alternative, less discriminatory way of achieving their aim;
• what they are doing does actually achieve the aim; and
• the benefits of achieving the aim outweigh the harmful effects of the discrimination.

It is up to the employer to argue that the aim they are trying to meet is a legitimate one.  Examples of aims that employers might use could be:

• health and safety of employees and customers
• the need for an employee to be in the post for a reasonable time before retirement
• business needs and efficiency.

It will be for the tribunals and courts to decide on a case by case basis, whether a measure is justified or not.

For example…

An employer might argue that it was appropriate and necessary to refuse to recruit people over 60 where there is a long and expensive training period before starting the job (for example, air traffic controllers). In this case, the legitimate aim would be the need for a person to be in a job for a reasonable period before they retire.  This argument may or may not succeed.

Exceptions to the law

The legislation contains some exceptions which enable employers, under certain circumstances, to discriminate on the grounds of age, without having to justify it. These include situations where: 

• benefits link to length of service
• there’s a genuine occupational requirement
• there’s a need for ‘positive action’
• existing law stipulates an age requirement
• employers rely on the National Minimum Wage for young people

 

The following text explains when these exceptions to the age discrimination law apply:

Where there are benefits that link to length of service

Many employers have policies which link pay and benefits to an employee’s length of service. For example, additional holiday entitlement for employees after two years service.

This may indirectly discriminate against younger people as they are less likely to have been with an employer long enough to qualify for the benefit. There is an exemption to allow this kind of practice to continue in most circumstances.

Generally, any benefit linked to length of service will be lawful, but if the length of service required is more than five years, the employer must show that it is expected to meet a business need, such as encouraging loyalty, motivating workers or rewarding experience. This is an easier test for employers to meet than the normal test for justifying discrimination.

If the length of service required is less than five years, it will automatically be lawful, without the employer having to meet the business need test.

Where there’s a genuine occupational requirement

An employer can set an age requirement for a job if there is a genuine need for a person to have a characteristic related to a certain age. The example usually given is of an actor playing the role of a person of a particular age.

Where there’s a need for ‘positive action’

‘Positive action’ means doing something to prevent or compensate for disadvantages experienced by people of a certain age group. This will be allowed in two areas:
a) for access to training and education facilities, and
b) to encourage people to take up employment opportunities.

This means employers will be able to target their recruitment advertising at older people, for example, as long as the position itself is open to all ages. Selection on the basis of a candidate’s age will not be lawful, unless it can be justified.

For example…

A company with a disproportionately young workforce, aware that older people rarely apply for jobs with them, could advertise saying “we particularly welcome applications from people over the age of 45, as this age group is currently under-represented, but appointment will be made on merit alone.”

Where existing law stipulates an age requirement

An employer can discriminate on the grounds of age if this is required by existing law. 

For example…

An employer can refuse to employ someone under 18 to serve alcohol, in order to comply with licensing requirements.

Where the employer relies on the National Minimum Wage for young people

Because the National Minimum Wage is split into three different rates depending on the age of the worker, it will be lawful for employers to pay workers different rates according to their age. This will only apply as long as the age bands mirror those of the minimum wage (ie. 16 and 17 year olds, 18-22 year olds and adult rate), and the younger workers are paid less than the adult rate of the National Minimum Wage.

 

Free mini-guide to age discrimination at work

You can download all the information in this section in our mini-guide to age discrimination, or you can order a copy  from our freephone Information Line on 0800 00 99 66.

Find out more about the age discrimination law

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