Age Discrimination in Employment & Service Provision

Including what is Objective Justification?

Age Discrimination & Employment

Age discrimination at work is unlawful in almost all types of employment. All employees and workers of any age are protected from age discrimination including partners of firms, contract workers and anyone in vocational training. All aspects of employment (or prospective employment) are protected from age discrimination, including:

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:

Legitimate means:

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.
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.’

Other exemptions:

Age discrimination against adults in the provision of services and public functions

It is now unlawful to discriminate on the basis of age unless the practice is covered by an exception from the ban, or good reason can be shown for the differential treatment (‘objective justification’).

The new law prohibits only harmful treatment that results in genuinely unfair discrimination because of age. It should not outlaw the many instances of different treatment that are justifiable or beneficial.

Age discrimination Exceptions Orders set out the specific exceptions to the ban, which are as follows:

These specific exceptions will be in addition to:

NB:  There are no specific exceptions to the ban on age discrimination for health or social care services. This means that any age-based practices by the NHS and social care organisations would need to be objectively justified, if challenged.

Notes adapted from EHRC and GEO