Age Discrimination - When It May Be Lawful Checklist

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. This business briefing highlights the most 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:

  • Standard (adult) rate: workers aged 21 or over (currently £6.19)
  • Development rate: workers aged between 19 and 20 inclusive (currently £4.98)
  • Young workers rate: workers aged under 18 but above the compulsory school age who are not apprentices (currently £3.68).

Redundancy pay

  • Redundancy pay is potentially discriminatory as it is often calculated based on age or length of service. However, a redundancy scheme that is similar to the statutory redundancy pay will not be regarded as discriminatory. A statutory redundancy payment is calculated using a multiplier based on age and length of service.
  • A redundancy scheme that aims to cushion older workers and reward loyalty, particularly where the scheme has the support of the workforce, will not be discriminatory.

Insurance benefits

Businesses are entitled to provide employees with access to insurance or a related financial service up to the age of 65.

Provision of childcare facilities

A business can provide childcare facilities for employees caring for children in a particular age group (for example, a crèche). The business can also help employees with:

  • The payment of some or all of the cost of child care.
  • Identifying a suitable person to provide child care. 


There is no longer a default retirement age allowing a business to automatically retire all employees when they reach age 65. Although a business can still have a retirement age that applies to all employees, the business will need to be able to show that the compulsory retirement of an employee achieves a previously identified legitimate aim, or the retirement will amount to age discrimination. Legitimate aims can include:

  • Promoting access to employment for younger people.
  • Efficient planning of the departure and recruitment of staff.
  • Sharing employment opportunities fairly between the generations.

Occupational requirements

In limited circumstances, the business can stipulate that, because of the nature of the job in question, only people in a particular age group can do the job.

Positive action

A business can take positive action if it thinks any of its employees are disadvantaged or under-represented because of their age. For example, if the majority of its employees are under the age of 40, the business could place a job advert encouraging applications from all age groups, especially applicants over the age of 40.

If you would like further information, please contact Stacey Edgley on 01252 367517 or at our Farnborough office or Mel McCrum on 01252 367523 or at our Ash Vale office.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.