Can an employer justify 'positive discrimination' on grounds of age?

Employers are permitted (but not compelled), where more than one candidate for a job or promotion is equally qualified, to choose a candidate on the basis that they are from a protected group, which includes age. However, to engage in positive action, the employer needs to have identified a need for that action, for example evidence of under-representation in their workplace and be able to justify the reasonableness of their decision to prefer the candidate with the protected characteristic.  

The decision as to whether candidates are of equal merit must be based on a properly reasoned and systematic assessment of the candidates. 

The Equality and Human Rights Commission says that this kind of positive action in recruitment and promotion is meant for use in a “tie-breaker” situation, where two candidates are of equal merit.The Equality Act also allows employers to use specific measures to encourage entry or progression of under-represented groups in their workplace, such as advertising positions in publications whose readership is known to be of the under-represented group, encouraging people of a particular age group to take up training opportunities in an industry, or offering mentoring or leadership training to members of the under-represented group. 

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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