It is generally unlawful for an employer to discriminate on the grounds of age - ie to treat individuals of any age less favourably than others on the grounds of age.
There are limited circumstances when it can be lawful - for example:
- if there is a Genuine Occupational Requirement - ie if you are producing a play which has parts for older or younger characters
- if there are legal reasons - ie where people must be at least 18 to serve alcohol
- if there is an objective justification - ie the employer must show real evidence that they are pursuing a legitimate aim and that the age restriction is a proportionate means of achieving that aim
Exceptions are rare and any should be considered carefully. Unjustified discrimination can be challenged and there is no statutory limit on how much an industrial tribunal can award.
Some examples of age discrimination
Direct age discrimination would occur if, for example, an employer refused to employ people under the age of 30, believing them to be unreliable (as such a reason, being nothing more than a negative stereotype, is unlikely to be justifiable). It would also be direct age discrimination to have, without lawful justification, a compulsory retirement age for your employees (no matter whether it is set at 55, 60, 65 or 70 years or at any other age).
Indirect discrimination would occur if, for example, an employer only advertised jobs in magazines aimed at young people - this may discriminate against older people as they are less likely to subscribe to the magazine; or introduced a benefit only for employees with more than ten years' service - fewer younger employees are likely to have enough service to qualify. However, it might be possible to justify this type of discrimination if it was reasonably necessary to do it in order to achieve some legitimate business aim, such as rewarding staff experience or encouraging staff retention.
Note that it may be possible to state that a job holder must be of a certain age where being of that age is a genuine occupational requirement - see discrimination during the recruitment process.
For more information on these and other forms of discrimination, see equality law and types of discrimination.
Avoiding age discrimination
You should check that your recruitment process is non-discriminatory, eg aim to place advertisements in publications read by a range of age groups, and avoid using terms which imply a particular age group, such as 'mature', 'enthusiastic', 'highly experienced' or 'recent graduate'.
You must also make sure that your redundancy procedures are based on business needs rather than age, eg it could be discriminatory to select employees for redundancy solely on the basis of 'last in, first out'.