Equality and Human Rights Commission

Age is different from other protected characteristics. If your employer can show that it is objectively justified, they can make a decision based on someone’s age.

However, it is very unusual to be able to objectively justify direct age discrimination of this kind. Employers must be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.

This guide explains when your employer can make redundancy payments based on someone’s age, and what they must and must not do if they want an employee to retire because they have reached a particular age.

If an employer can show that a particular protected characteristic is central to a particular job, they can insist that only someone who has that particular protected characteristic is suitable for the job. This is known as an occupational requirement'. If an employer has appointed a person using an 'occupational requirement' and the worker no longer has that particular protected characteristic, equality law allows their employer to dismiss them without this being unlawful discrimination.

An employer can take into account a protected characteristic where not doing this would mean they broke another law. For example, if the law said that a person had to be a particular age to do something and their employer discovered that they were not that age, their employer could dismiss the worker without this being unlawful discrimination.

An employer can take a person’s protected characteristic into account if there is a need to safeguard national security, and the discrimination is proportionate.

If an employer is a religion or belief organisation, they may be able to say that a job requires a person doing the job to hold a particular religion or belief if, having regard to the nature or context of the job, this is an occupational requirement and it is objectively justified. The employer could then dismiss the person if they no longer held that religion or belief without this being unlawful discrimination.

For example:

A Humanist organisation which promotes humanist philosophy and principles would probably be able to apply an occupational requirement for its chief executive to be a Humanist. If the chief executive stopped being a Humanist, the organisation could dismiss them without this being unlawful discrimination.

If :

• a job or role exists for the purposes of an organised religion, such as being a Minister or otherwise promoting or representing the religion, and
• because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion’s followers or to conform to the doctrines of the religion by applying a requirement to the job or role,

an employer may be able to dismiss a person because:

• they are male or female (if the requirements of the post change bringing it within the exception)
• they are a transsexual person
• they marry or enter into a civil partnership, including taking into account who they are married to or in a civil partnership with (such as someone who marries a divorced person whose former spouse is still alive)
• they manifest a particular sexual orientation, for example, a gay or lesbian person who enters into a relationship with a same-sex partner.

The requirement must be crucial to the job or role, and not merely one of several important factors. The job or role must be closely related to the purposes of the religion, and the application of the requirement must be proportionate.

The next part of this guide tells you more about how your employer can avoid all the different types of unlawful discrimination in the following situations:

• Dismissing you, whether that is for misconduct or because your employer says you can no longer do the job
• Making you redundant when your job is no longer needed
• Retiring you because you have reached a particular age
• Dealing with you after you have stopped working for them, for example, if you or your new employer ask for a reference

If your employer tells you that you are facing dismissal or redundancy or if you do not want to retire at a particular age, it is worth getting advice before your employer starts the procedures that would result in your losing your job. There are a number of different organisations who may be able to help you, and you can find contact details for some of them are found within Further sources of information. You should also consider talking to your trade union if you have one.