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What doesn't count as age discrimination at work?

This advice applies to Scotland

If you’re a job applicant or a worker, an employer isn’t generally allowed to discriminate against you because of your age. But there are situations when it’s not age discrimination under the Equality Act 2010 if an employer treats you differently because of your age.

Read this page to find out more about what doesn't count as age discrimination by an employer.

Benefits linked to length of service

Employers sometimes give benefits to employees which are linked to their length of service. For example, your holiday entitlement may increase after you’ve worked for your employer for a certain number of years.

Benefits include things like:

  • pay
  • annual leave
  • sabbaticals
  • health insurance
  • access to a company car.

If you don't qualify for a benefit because you haven't worked for your employer long enough, it could be indirect age discrimination. This is because younger employees are less likely to qualify for these benefits than older employees, as they are less likely to have worked long enough to qualify.

Benefits linked to a length of service of five years or less

Benefits which are linked to a length of service of five years or less are always allowed under the Act and it's not age discrimination under the Equality Act.

Benefits linked to length of service of more than five years

The Equality Act says employers are sometimes allowed to link benefits to a length of service of more than five years. But they have to show it fulfils a business need - for example, because they want to encourage loyalty or reward higher levels of experience.

They must also show that the needs of the business are more important or outweigh the discriminatory effect this has on you and other employees. If they can show this, it won't be unlawful age discrimination under the Equality Act.

Example

Your employer allows staff with four years’ service to ask for a sabbatical. You’ve only worked for your employer for two years and so you don’t qualify for this benefit. You wouldn’t be able to complain about indirect age discrimination in this case. The employer doesn’t have to show it fulfils a business need or that the needs of the business outweigh the discriminatory effect on you as the sabbatical is offered to employees with less than five years’ service.

National minimum wage

In the UK, most workers over the age of 16 are entitled to be paid a national minimum hourly wage. The law sets out that different rates of national minimum wage are payable depending on your age, up to the age of 21. All workers aged 21 and over are paid the same amount of minimum wage.

An employer can base their pay structure for young workers aged 16 to 21 on the national minimum wage pay bands set out in the law. This is not unlawful age discrimination.

Redundancy payments

If you’ve been made redundant from work, you may have the right to a redundancy payment.

There are two sorts of redundancy pay:

  • statutory redundancy pay, which is set out in the law and applies to employees with more than two year’s continuous service
  • contractual redundancy pay, which you may be entitled to under your contract of employment.

How much pay you get will depend on things like your age and how long you’ve worked for your employer. If you get less redundancy pay than someone else because you're younger than them or because you've not worked for your employer for as long as they have, it could be age discrimination.

However, the Equality Act says it’s not unlawful age discrimination when an employer:

  • makes statutory redundancy payments, or
  • makes higher contractual redundancy payments which are based on age and length of service, as long as they’re calculated in the same way as the statutory redundancy pay scheme.

If the contractual redundancy pay scheme is calculated differently to the statutory pay scheme, then it could be unlawful age discrimination.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

Acas

Acas works with both employers and employees to solve workplace problems.

You can phone the Acas helpline on: 0300 123 1100 and speak to an adviser about your employment problems. The helpline is open 8am-8pm Monday to Friday and 9am-1pm on Saturdays.

You can find useful information about how to sort out work-place problems on the Acas website at

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