Equality and Human Rights Commission

A ban on age discrimination in services, public functions and associations will take effect on 1st October 2012. This website will be updated shortly to provide more information.

In certain circumstances, age discrimination may be lawful, but there must be an ‘objective justification’ in every case.

Objective justification

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:

• what the employer is doing is actually achieving its aim
• the discriminatory effect should be significantly outweighed by the importance and benefits of the legitimate aim
• the employer should have no reasonable alternative to the action they are taking. If the legitimate aim can be achieved by another or less discriminatory means, they must then opt for that route.

Legitimate means:

• economic factors such as the needs of and the efficiency of running a business
• the health, welfare and safety of the individual (including protection of young people or older workers)
• the particular training requirements of the job.

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.

A genuine occupational requirement

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. 

Positive Action

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:

• the national minimum wage is split into three different rates depending on the age of the employee. Therefore it is within the law for employers to pay their employees minimum wages of different rates according to their age.
• employment can depend on age if this is required by existing law. For example, the position of a bar tender serving alcohol at a club can only be filled by someone who is over 18 years of age, to comply with licensing requirements.
• volunteers generally don’t have protection from discrimination, unless their unpaid work is part of a training course or they are government-appointed office holders (like magistrates, for example).
• age discrimination legislation does not cover the provision of goods and services, which means that it is lawful for insurance companies and healthcare providers, for example, to discriminate on the grounds of age.