Creating a fairer Britain
The Equality Act came into force on 1 October 2010. Some of the information on this page may be out of date.
In certain circumstances, age discrimination may be lawful, but there must be an ‘objective justification’ in every case.
An objective justification allows an employer to discriminate both directly and indirectly on the basis of age. They must, however, show that this discrimination is ‘proportionate’ and contributes to a ‘legitimate’ aim.
Proportionate means that:
A legitimate aim must correspond with a legitimate need of the employer. For example, economic efficiency may be a real aim but saving money because discrimination is cheaper than non-discrimination is not a legitimate need. It is not easy to prove objective justification, and employers have to provide valid evidence if they are challenged.
For example, some employers have policies that link pay and benefits to an employee’s length of service, such as additional holiday entitlement for long-serving employees. This may indirectly discriminate against younger people who are less likely to have been employed for that length of time, but in most circumstances it is seen as being a proportionate way of encouraging staff loyalty.
In some circumstances, it may be lawful for an employer to treat people differently if there is a ‘genuine occupational requirement’ for a job holder to be of a particular age. For example, a younger actress would be required to play the role of a female teenager in a film.
The term ‘positive action’ refers to legal measures that are designed to counteract the effects of past discrimination and to help abolish stereotyping. Positive action can be taken to encourage people from particular age groups to take advantage of opportunities for training or work experience schemes, or encourage them to apply for particular employment. It can only be done when a particular group has been identified as under-represented in a certain area of employment. Positive action may include things like introducing fair selection procedures, training programmes or targeting job advertisements at a particular group.
Positive action is not the same as positive discrimination, and does not involve treating particular groups more favourably when recruiting. Employers must make sure that employees are hired or promoted on merit alone.
For example, a company with a young workforce which does not typically attract applications from older people could advertise a job vacancy by saying: ‘We would welcome applications from candidates over the age of 45, as this age group is currently under-represented within our establishment. However, the appointment will be made on merit alone.’
There are a few other exemptions: