Calling time on age discrimination

A mini-guide to age discrimination at work

Your new rights
What does the new law cover?
The different types of age discrimination
When is age discrimination allowed?
How does the law apply to you?
How do I enforce my rights?
Getting help

When is age discrimination allowed?

There are certain circumstances where it is lawful for employers to discriminate on the grounds of age.

Some types of age discrimination are not covered by the law, and some other types of discrimination can be justified by employers.

Where age discrimination can be justified

There may be certain circumstances when employers 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:
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;
• or 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. Here are some examples of arguments an employer might make.

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, and for the employer to see a return on the investment they have put into training the employee. The employer would have to show that
there was no less discriminatory way of achieving the aim.

For example: An employer could advertise a position saying that at least five years’ experience in that or a similar position is required for the job. This is potentially indirect age discrimination, as fewer younger people (say in the age
group 16-24) would have five years’ work experience. The employer may try to argue that this requirement is justified, because it is genuinely necessary for the needs of the business for the employee to have that amount of experience to be
able to fill the post, and that there is no alternative, less discriminatory way of achieving their aim. Depending on the circumstances, 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.

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’ ervice.
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 exception 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 isadvantages experienced by people of a certain age group. This will be allowed in two areas:

• for access to training and education facilities; or
• 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 to it for jobs, could advertise saying: ‘we particularly welcome applications from people over the age of 45, as this age group is currently underrepresented, 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 a bar, in order to comply with licensing requirements.

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

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 as long as the age bands mirror those of the minimum wage (16-17 year olds, 18-22 year olds and adult rate), and the younger workers are paid less than the adult rate of the minimum wage.

It does not allow employers to pay different rates to those within the same age category.