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Justifying age discrimination at work

This advice applies to England

An employer isn't generally allowed to discriminate against you because of your age. This is unlawful under the Equality Act 2010.

But there are situations where your employer may be able to justify discriminating against you because of your age. If an employer lawfully justifies discriminating against you it doesn't count as unlawful discrimination under the Act.

Read this page to find out about when an employer can justify age discrimination.

When can an employer justify age discrimination?

An employer may be able to justify both direct and indirect age discrimination.

Direct age discrimination is when you're treated differently and worse than someone else simply because of your age - for example, if your employer dismisses you because your have reached 65.

Indirect age discrimination is more difficult to spot. It's when you're treated in the same way as other people at work, but it has a worse effect on you because of your age.

How can an employer justify age discrimination?

To justify age discrimination the employer would have to show they have a good enough business reason for discriminating against you. The Equality Act calls this a legitimate aim. The employer can't just say they have a good business reason for discriminating against you, they must be able to show it.

Justification for direct age discrimination is more strict than in other areas and so the reason or legitimate aim must be:

  • inter-generational fairness or succession planning - for example, enabling younger workers to access the job market or allowing older workers to stay longer in employment
  • dignity - for example, to avoid the need to dismiss an older worker for performance reasons.

Examples of reasons employers often use to try to justify indirect age discrimination are:

  • ensuring the health and safety of its employees
  • rewarding loyalty
  • running a profitable business
  • business efficiency.

But something may not be a good enough business reason if the employer could have done things in a less discriminatory way. This means the employer must show they thought about the discriminatory effects of the decision or action they took and that it was necessary to act in that way. The Equality Act says the employer must show the decision is a proportionate means of achieving the legitimate aim.

Example

You’re 54 years old and would like to apply for a job advertised at your local county council which you're well qualified for. However, the advert says you have to have a degree and you don’t have one. This is potentially age discriminatory because people under 40 are more likely to hold a degree that those over 40 due to changes in education policy in recent years. This discrimination may be capable of being justified such as if the employer needed to maintain high aceademic standards to obtain funding.

Can reducing costs be a good business reason?

Your employer can’t justify discriminating against you just by saying it’s necessary to reduce costs. However, costs can be taken into account as part of the justification if the employer can show there are other good business reasons for the discriminatory treatment.

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.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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