Equality and Human Rights Commission

If you employ young workers aged between 16 and 21, you can base your pay structures for them on the age bands set out in the National Minimum Wage Regulations 1999.  

These Regulations set minimum wage rates and have lower minimum wage rates for younger workers aged 16 and 17, and for those aged 18 to 21.

You can either use the rates of pay set out in the Regulations or you can pay higher wages as long as they are linked to the same age bands. This assumes that you are paying younger workers less. You do not have to set different rates for workers of different ages; you could decide to pay everyone the same hourly rate regardless of age.

If you do use the national minimum wage age bands, the rates of pay themselves do not have to be related to the national minimum wage. In other words, the differences between the different bands do not have to relate to the level of the national minimum wage in that band.

For example:

A supermarket decides to review its pay scales. It must pay at least the national minimum wage. If it decides to pay more, and to pay different rates to younger employees, it can do this, as long as it bases what it does on the age bands used for the national minimum wage. The supermarket opts for the following rates which would be allowed:

16-17 years of age - 20p per hour more than the national minimum wage for employees in that age band

18-21 years of age - 45p per hour more than the national minimum wage for employees in that age band, and

22 years of age or over - 70p per hour more than the national minimum wage for employees aged 22 or over.

Always remember that specific rules apply where pay or benefits are part of the workers contract of employment and women and men are being paid differently. If this is the case (for example, if the jobs for which you are paying younger workers at different rates are mainly done by young women or mainly done by young men). you should also read the information in Making sure you are giving women and men equal pay and benefits.

In addition, you may be allowed to give workers different pay and benefits based on how long they have worked for you, even though this would otherwise be indirect discrimination because of age (as younger workers are likely to have been at work for a shorter time).

For length of service up to five years, you do not have to justify differences at all.

For example:

For junior office staff, an employer operates a five point pay scale to reflect growing experience over the first five years of service. Equality law would allow this.

Length of service can be worked out in one of two ways:

• by the length of time someone has been working for you at or above a particular level, or 
• by the length of time someone has been working for you in total.

If you use length of service of more than five years to award or increase a benefit, this falls outside the exception.

But there is a further difference: you may still be able to use length of service to set pay and benefits after workers have been with you for more than five years if you reasonably believe that using length of service in this way fulfils a business need. You may believe it rewards higher levels of experience, encourages loyalty, or increases or maintains workers' motivation.

This is a less difficult test than the general test for objective justification for indirect discrimination. However, you must still have evidence on which to base your belief.

Examples of the sort of evidence you could use include:

• monitoring
• staff surveys
• individual or group discussions with staff.

Always remember that specific rules apply where pay or benefits are part of the workers contract of employment and women and men are being paid differently. If, for example, the jobs for which you are providing increased pay or benefits based on length of service are mainly done by men, so that they end up significantly better off than the women you employ, you should also read Making sure you are giving women and men equal pay and benefits.

You must not treat workers who are married or in a civil partnership worse than you treat workers who are not married or not in a civil partnership.

However, you can treat them better. This will not be unlawful discrimination against workers who are not married or in a civil partnership.

But you must treat workers who are married and workers who are in a civil partnership the same.

For example

An employer gives an additional weeks honeymoon leave to a woman who is getting married. Last year, her lesbian colleague who was celebrating a civil partnership was given only one extra days leave to go on honeymoon. This is almost certainly unlawful discrimination because of sexual orientation.

If you extend a benefit to partners of the people who work for you, for example, allowing them to drive a company car, or giving them staff discounts on your services, these benefits must be offered on the same terms to same-sex partners and opposite-sex partners.

You must be consistent about whether you require partners to be married or in a civil partnership to receive a benefit. If you give benefits to unmarried opposite-sex partners, you must give them on the same terms to same-sex partners who are not in a civil partnership. Not to do so would almost certainly be unlawful discrimination because of sexual orientation.

The only exception to this is if a benefit was provided just for married workers before 5 December 2005 or applies to a time when someone was working for you before that date.

Always remember that specific rules apply where pay or benefits are part of the workers contract of employment and women and men are being paid differently. If, for example, the jobs for which you are providing a benefit based on whether a worker is married or in a civil partnership are mainly done by women or mainly done by men, so that people of one sex end up significantly better off than the other, you should also read the information in Making sure you are giving women and men equal pay and benefits.

As well as these exceptions, equality law allows you to treat a disabled worker better  or more favourably than a non-disabled worker. This can be done even if the disabled worker is not at a specific disadvantage because of their disability in the particular situation.  The reason the law was designed this way is to recognise that in general disabled people face a lot of barriers to participating in work and other activities.