Can an employer ever justify discriminating on grounds of age?

In some circumstances, yes. Age discrimination is legal for employers where it is objectively justified. This is a strict test based on EU law. Employers would need to show that their actions were intended to achieve a legitimate aim, and were an appropriate and necessary means of achieving that aim.

For example, in a direct discrimination case, it may be argued that workers over 50 should receive higher redundancy payments for each year of service because of the difficulties that they are likely to face in finding alternative employment. However, it would have to be demonstrated, using persuasive evidence, that older workers are more likely than younger workers to be at greater risk of unemployment and that the higher payments were proportionate to that greater risk.

The most important point to note is that employers who want to introduce an age discriminatory policy can and should be challenged to produce proper persuasive evidence to show, for example:

  • that there is a genuine issue that needs addressing – for example, a need to retain younger workers;
  • that they have carefully considered before ruling out any alternative, less discriminatory ways of addressing the problem; and
  • that their proposal, if implemented, would stand a good chance of achieving the employer’s aim.
  • The worse the impact on the age group that loses out, the harder the employer will have to work to demonstrate that their age discriminatory policy is justified.

Acas has some guidance to help you ask questions about potential discrimination (PDF, 164 KB).

There should be full consultation with the workforce whenever potentially age discriminatory policies or practices are under consideration at work, to understand their implications and potential effects on different age groups, and to hear suggestions from workers as to the alternatives available. Where there is a recognised union, the consultation should be with the union.

You can encourage your employer to consult properly by pointing out that an employment tribunal is much more likely to decide that an age discriminatory policy is legitimate and justified if the workforce was properly consulted before it was implemented – through a trade union where one is recognised - and their views were properly taken into account. 

In reality, only a tiny fraction of age discrimination claims ever come before an employment tribunal. Challenges to ageist policies usually stand a much higher prospect of achieving a good outcome for everyone at work if you organise and take a collective approach – through the union where one is recognised. It is much better to tackle this kind of issue head on while the policy is being formulated, rather than after the event, before a tribunal.   
 

Note: This content is provided as general background information and should not be taken as legal advice or financial advice for your particular situation. Make sure to get individual advice on your case from your union, a source on our free help page or an independent financial advisor before taking any action.

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