Age discrimination - when it may be lawful

Wilson Browne

1st June 2019

Legal Briefing

Wilson Browne

By Jennie Jahina

Wilson Browne Solicitors

BUSINESSES are generally prohibited from discriminating against an employee on the basis of their age.

For example, choosing not to interview a candidate because their application suggests they are nearing retirement age is discriminatory. However, unlike other forms of discrimination, in certain circumstances, a business may be able to justify treating employees differently because of their age. There are two common exceptions:

Service-related benefits

A business is allowed to provide benefits which reward long service. For example, service-based rewards such as:

* Extra days holiday

* Incremental pay

* Share options

However, if the benefit is affected by length of service of over five years, the business will need to be able to show that it fulfils a business need, such as encouraging loyalty.

National minimum wage

A business is entitled to follow the national minimum wage rates that exist for different categories of worker:

- National living wage. For workers aged 25 or over (there is no upper age limit). This was initially set by the government at 50p above the standard adult rate, but is now a separate age-related hourly rate.

- Standard (adult) rate. For workers aged between 21 and 24 inclusive.

- Development rate. For workers aged between 18 and 20 inclusive.

- Young workers rate. For workers aged under 18 but above the compulsory school age that are not apprentices.

- Apprentice rate. For apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship

The law is complex. As an employer you can't risk reputational or financial damage - seek expert advice from a specialist. For a no obligation informal discuss call 0800 088 6004.