Technical factsheet 150 Age discrimination

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Technical factsheet 150

Age discrimination

The law in relation to age discrimination was introduced in 2006 and is now covered by the Equality Act 2010.

ACAS has published a code providing guidance on law and practice; this can be found at, in the document ‘Age and the workplace: a guide for employers and employees’.
Please note the changes to the rules that require claimants to make payments both to lodge a claim and to list their case before the tribunals, and which impose penalties on employers who lose their cases. Details of these reforms are given in Technical Factsheet 154, ‘Unlawful discrimination’, available at
The Equality Act 2010 can be viewed at
Who does the law cover?

All employees and workers are covered, as well as those accessing vocational training, including job applicants and people who have left their job (and, for example, have not received a reference). The law specifically includes partners in a partnership, and other self-employed people where the dominant purpose of the contract is that the individual carries out the work personally. There are a number of other specified categories including the police and office holders, but the armed forces are excluded. Also, age must not affect the way that an employment agency provides its service or offers services, and the agency will be liable for age discrimination if it accepts unlawful instructions from a principal.

Who is liable?

An employer will be liable if its employee carries out an act of unlawful discrimination in the course of his/her employment, unless the employer has taken reasonably practicable steps to prevent it.

Territorial extent

The law on age discrimination applies to individuals in the categories above where they are:

  • working in the UK

  • based in the UK, although peripatetic

  • expatriate employees who are permanent employees of a UK company providing their work into the UK, eg foreign correspondents for newspapers

  • expatriate employees working in a UK enclave in foreign country, eg on a British military base in Germany.

What is unlawful?

Age discrimination has been formulated in a similar way to the other anti-discrimination provisions. A person may be liable for:

  1. DIRECT discrimination – where, because of B’s age, A treats B less favourably than he or she treats, or would treat, other persons, eg a person is made redundant because of their age, or is forced to retire for that reason

    • This includes discrimination on the grounds of age and of youth.

    • It also includes discrimination on the basis of someone’s perceived age, or because of their association with someone in a particular age group.

    • Age discrimination is different from other discrimination strands in that it is possible for the employer to defend itself from a claim of direct discrimination if it can prove that the discrimination was objectively justified.

    • The applicant will have to show that s/he has been treated differently from someone else in the same position of a different age, or differently from how such a person would have been treated. There probably needs to be a significant difference in age to make such a claim likely to succeed. In an Irish case, the court rejected a claim from a 31-year-old that she had been passed over for promotion in favour of a 28-year-old.

INDIRECT discrimination, where:

    1. A applies to B a provision, criterion or practice which A applies equally to other persons; and

    2. that provision, criterion or practice puts persons of B’s age group at a particular disadvantage, and B suffers that disadvantage.


A can show that this provision, criteria or practice can be objectively justified.

An example of this might be to require applicants for a post to undergo a stringent health check. This would be likely to indirectly discriminate against older people and might be unlawful unless it could be shown to be necessary in the context of the job under consideration.

  1. VICTIMISATION A discriminates against B where he treats B less favourably than he treats or would treat other persons by virtue of something done by B under or in connection with the regulations; for example, B has brought a case, or given evidence, or made an allegation, in relation to a matter covered by the regulations.

  1. INSTRUCTIONS TO DISCRIMINATE This is where A alleges that s/he has been treated unfavourably because s/he has refused to carry out instructions which are unlawfully discriminatory; for example, A refuses to carry out an order from his or her boss to shortlist only those under 40 for a position. If this is then followed by A receiving a poor appraisal and then not being awarded a pay rise, A is likely to have a claim of unlawful discrimination.

  1. HARASSMENT The complainant has to show:

  • either that their dignity has been violated, or

  • that they have been subjected to an intimidating, hostile, degrading, humiliating or offensive environment, and

  • the reason for the unwanted conduct was that person’s age.

Are there any exceptions?

It may be possible to argue that age is a genuine occupational requirement and that a person be a particular age in order to fulfil a position. Currently, examples seem to be confined to acting jobs where being of a particular age is a critical part of the role.

It is also acceptable for employers to practise both positive discrimination and positive action in certain limited situations, ie recruiting or making an effort to recruit older or younger workers where they are under-represented in the employer’s workforce or in a particular area by recruiting, for example, older workers or by targeting training and advertising to increase applications. This can only be done in certain circumstances and more details of this can be found in Technical Factsheet 154.
Exceptions are also made for:

  • minimum wage regulations, which are set on the basis of age bands

  • service-related benefits, which can be paid on basis of length of service (see below)

  • redundancy pay. This is calculated based partly on age and length of service and will remain this way; this includes both the minimum statutory scheme and any enhancement that the employer might choose to make, as long as it is in line with the statutory scales

  • insurance and financial services. It will not be an act of age discrimination for an employer to ‘make arrangements for, or afford access to, the provision of insurance or related financial service to or in respect of an employee for a period ending when the employee attains whatever is the greater of 65, or the state pensionable age’. Thus it is lawful for, for example, the employer to provide group health cover for employees which ends at 65.

Objective justification

This is relevant here in justifying both direct and indirect discrimination, and the test is the same. The employer will have to show that the treatment in question is shown to be a ‘proportionate means of achieving a legitimate aim’. Proportionate is to be equated with ‘appropriate and necessary’, and involves a balancing exercise between the discriminatory impact of the treatment in question and the legitimate aim of the employer. The sorts of things envisaged by the consultation prior to the legislation were things such as health and safety, facilitation of employment planning, encouraging and rewarding loyalty, training requirements, and the need for a reasonable period of employment before retirement.

Advertising/method of recruitment

There is no specific provision making discriminatory advertisements unlawful as such, but adverts may be produced as evidence of an intention to discriminate and unsuccessful candidates for jobs might use such an advert to support his or her case. Job specification criteria accompanying adverts may constitute ‘arrangements [an employer] makes for the purpose of determining to whom he should offer employment’ and so might well be covered – for example, practices like the ‘milk round’ might be inherently discriminatory.

Requirements for the job

Beware of wording in an advertisement which tends to indicate an intention to discriminate, such as ‘energetic’ or ‘youthful’, as well as words that might appear to restrict applications to particular age groups, eg ‘recent graduate’, ‘junior’, ‘would suit school leaver’, ‘mature applicant sought’. Also, do not require only those qualifications which relate to a particular era, and therefore to a particular age of applicant, eg ‘O’ levels, media studies degree.

You need to be careful about requirements for post-qualification experience (PQE). There may be a big difference between a one- and three-year qualified accountant, but what about eight years and ten years? One can always argue that what matters is what the employee has actually done during his or her period of PQE, and that is what the employer should be concentrating on.
Perceptions of ‘over-qualification’ need to be tested at interview, otherwise they are likely to be age discriminatory, as level of qualification and experience tend to be related to age. What does it mean when you say ‘over-qualified’? Do you believe for good reason that this person will quickly become bored or demotivated, or do they have a good reason for seeking a less demanding role than they might be capable of?

It is not unlawful per se to ask someone their age at interview, but it may be evidence of an intention to discriminate if there is a later claim, and it is thus very unwise.

Discrimination during employment

It is unlawful for an employer to discriminate:

  • in the terms of employment afforded the employee

  • in the way in which the employee is afforded access to opportunities for promotion, transfer or to any other benefit

  • by subjecting the employee to any other detriment

Wages and salaries

Employers can still pay the actual minimum wage, which can still lawfully be determined on the basis of age, or they can also base their pay structure on these bands, even where they pay more than the minimum. Employers are also allowed to differentiate on the grounds of age when they are giving young people an apprenticeship as there is a minimum wage for this, ie they can pay more once the apprentice becomes entitled to the national minimum wage, but the lower apprentice rate before.

Service-related benefits
The five-year exception

Age- and service-related benefits are inextricably linked as they accrue with the passing of time. It is standard practice for employers to reward employees for length of service by giving them, for example, extra days of holiday. This is usually justified on the basis that it is aimed at ensuring that the employer attracts, retains and rewards experienced staff and rewards loyalty. The rules about service-related benefits apply to all workers. Where benefits are based on length of service of up to five years, they do not contravene the age discrimination legislation. Such benefits will not need to be justified individually.

The five-year criterion might relate to:

  • the overall length of time that the employee has been working for the employer

  • the length of time that the employee has been doing work of a particular standard, eg five years since qualification, five years in management.

Benefits relating to service over five years

Here, the employer must show that it ‘reasonably appears’ that his use of length of service ‘fulfils a business need of his undertaking (for example by encouraging the loyalty or motivation or rewarding the experience of all of his workers’. It is not a particularly high standard but it is suggested that employers will need to go through a process of actively considering whether the long-service criteria they impose really do fulfil business needs, and articulate reasons why those criteria remain in place. An example of this might be a paid sabbatical upon attaining 10 years of service, or a long-service gift for 25 years’ service.


It is important that selection criteria are relevant and objective and do not contain an element of indirect discrimination. Performance management processes, which may form a factor in decision-making, ought to be free of age bias. It is very important that:

  • Promotion opportunities should be communicated to everyone in the workforce equally.

  • Older workers should not be denied the opportunity to carry out more responsible tasks making it possible for them to be promoted.

  • Selection criteria should not discriminate against younger workers by requiring unnecessary levels of experience.

  • Interviewers should ask similar questions to all candidates and only deviate in a non-discriminatory way.

  • Training of interviewers and managers in age awareness is important.

  • Provision of training will depend on the type and duration of training – a 64-year-old should not be left out of a day’s computer training which would help them with their day-to-day work, but might not be considered for a one-year management training course.

Disciplinary action

The employee must not treat an employee more harshly because s/he ‘should have known better’, but more importantly and more likely is that employers take length of service into account in deciding on disciplinary measures. In considering whether a dismissal is reasonable, it has always been accepted that you can take long periods of blameless service as mitigating factors. It looks as though such a practice will need to be objectively justified, although it is very widespread and has yet to be challenged.


Many employers have used length of service as one of the factors to be considered in any selection matrix that is being used to identify candidates for redundancy. Longer serving employees will be given a higher mark than lesser serving staff. Recent case law has indicated that, although this is discriminatory, it can be justified on the grounds that it rewards loyalty. It would, however, certainly not be wise to use this as the only criterion to select and it would certainly be most unwise if it constituted a tie-breaker.


The default retirement age of 65, at which employers were free to require employees to retire, subject to a duty to consult, was abolished in 2011. A decision about retirement can now only be taken by employees, who are free to retire when they choose. Any purported dismissal by the employer for ‘retirement’ will be an unfair dismissal, as the reason given needs to be in accordance with the law on dismissal, ie for a legitimate reason such as performance or capacity or misconduct. Whatever reason is given, the dismissal might also constitute unlawful age discrimination unless it can be justified.

Technical Factsheet 150

Issued 04/15


This technical factsheet is for guidance purposes only. It is not a substitute for obtaining specific legal advice. While every care has been taken with the preparation of the technical factsheet, neither ACCA nor its employees accept any responsibility for any loss occasioned by reliance on the contents.

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