Click here to view all late offers

Age and the Workplace – Objective Justifications, Exceptions, Exemptions and Genuine Occupational Requirements.

Objective Justification.

An objective justification allows employers to set requirements that are directly age discriminating. They need to provide real evidence to support any claim of objective justification; assertion alone will not be sufficient and each case must be considered on its own merits.

Direct and indirect discrimination will be justified if it is:

• A proportionate means (of)

This is:

• What you are doing must actually contribute to a legitimate aim e.g. if you are aiming to encourage loyalty you need to have evidence that the provision you introduce will actually do this.
• The discriminating effect should be significantly outweighed by the importance and benefits of the legitimate aim.
• You have no reasonable alternative to the action you are taking. If the legitimate aim can be reached by less discriminatory means these must be used.

Achieving a legitimate aim.

A legitimate aim might be:

• Economic factors such as business need and efficiency.
• The health, welfare and safety of the individual (including protection of younger or older workers).
• The particular training requirements of the job.

It must correspond with a real need of the employer e.g. economic efficiency may be a real aim, but saving money by discriminating because it is cheaper is not legitimate. The legitimate aim cannot be related to age discrimination itself.

The test of objective discrimination is not easy and assertion alone will not be enough and it will be necessary to provide evidence that is not based on assumptions. You must also be sure that no alternative or less discriminatory actions can achieve the same result.

Exceptions and Exemptions for the Regulations

These exist in the following areas:

• Pay and other employment benefits based on the length of service.
• Pay related to the National Minimum Wage.
• Acts under statutory authority.
• Enhanced redundancy.
• Life Assurance.
• Retirement (further information available in ACAS Guidelines).
• Length of Service

Often employers require a certain length of service before increasing holiday entitlement for example. Without the exemptions contained in the regulations this could be seen as indirect age discrimination because some age groups are more likely to have completed the length of service required.

Any benefit earned by 5 years service or less will be exempt. Employers may use pay scales that reflect growing experience or limit the provision of non-pay benefits to those who have served a qualifying period subject to the 5 year limit.

The use of length of service of over 5 years for all types of employment benefit is lawful where:

• Awarding or increasing the benefit is meant to reflect a higher level of experience of the employee, reward loyalty or to increase or maintain the motivation of the employee.
• The employer has reasonable grounds for concluding that using length of service fulfils a business need of his undertaking.
• The employers need to have evidence from which to make the conclusions that there is a benefit to their organisation e.g. information from monitoring staff attitude surveys or focus groups.

National Minimum Wage

Nothing in the regulations will alter the provision of the National Minimum Wage. The same age bands of 16 and 17, 18 to 21 and 22 and over will apply and the exemption will allow employers to pay at or above the national minimum rates provided those in the lower age group(s) are paid less than the adult minimum wage. Therefore an employer may pay those aged 22 and over more than those aged under 22 as long as the latter are paid less than the minimum adult rate. Similarly the employer may pay those aged 18 to 21 more than those aged under 18 as long as the latter are paid less than the adult minimum rate. The exemption does not allow employers to pay different amount to the employees in the same age category. Apprentices who are not entitled to the national minimum wage may continue to be paid at a lower rate than those who are. Acts Under Statutory Authority

Age criteria are widely used in legislation notably to qualify for various licences. Where this is the case employers must follow the criteria laid down by Statute and will not be contravening the age regulations by doing so.

Enhanced Redundancy Payments

The statutory redundancy scheme will not substantially change (except in respect of years worked where the employee was under 18 or over 64). Both the statutory authority exemption and this regulation make it clear that even though statutory redundancy payments are calculated using age-related criteria these payments are lawful.

The exemption linked to statutory redundancy payments is for an employer who wants to pay more than the statutory scheme stipulates. It allows the employer to use one of the methods specified based on the statutory redundancy scheme to calculate the amount of redundancy payment.

An employer can use a different method to make calculations but if it is based on length of service and an employee brings a discrimination claim under the regulations the employer will have to objectively justify it in so far as age discrimination arises. (This is because the exception for pay and benefits based on length of service does not apply to redundancy payments.)

The exemption also allows an employer to make a redundancy payment to an employee who has taken voluntary redundancy and an employee with less than 2 years continuous employment. In such cases the employer can make a payment equivalent to the statutory minimum payment or if they so wish an enhanced payment as above.

Life Assurance Cover

Where employers provide life assurance cover for their employees and a worker retires due to ill health the employer may continue to provide that life assurance cover for that worker. This exemption allows the employer to stop doing so when the worker reaches the age at which he would heave retired if he hadn’t fallen ill. If there was no normal retirement age then the employer can stop providing life assurance cover when the worker reaches 65.

Genuine Occupational Requirement (GOR)

If an employer can show that it is a genuine occupational requirement for a job holder to be of a particular age they may treat people differently, but this only occurs in limited circumstances. In order to decide if this applies you must consider the nature of the work and the context in which it takes place e.g. an organisation advising to and promoting rights for older people may be able to prove that it is essential for its chief executive (who is the public face of the organisation) to be of a certain age.

The above information is based on the ACAS guidelines and further information may be found at: www.acas.org.uk.

Find out more:

11/12/2009

12/05/2010