Exceptions

There are a number of exceptions which may apply depending on the kind of discrimination which is being alleged.

Recruitment

If you are within six months of the normal retirement age at the time of your application for a job the employer is entitled to reject your application on the grounds of your age without this being age discrimination. The normal retirement age is the age at which persons in the employer’s employment normally retire, whether stipulated in contract or just as a matter of practice. If there is no such age then the Regulations state that 65 is to be used.
A second exemption which applies to recruitment and dismissal is that an employer can refuse to employ you where possessing a characteristic which is related to age is a genuine and determining occupational requirement and it is proportionate to apply the requirement in your particular case. If you do not meet the requirement or the employer reasonably does not believe that you satisfy the requirement then the employer is not obliged to employ you and the employer may dismiss you if you are already employed. However, these genuine occupational requirements are exceptionally rare and if your employer suggests that he can rely on one of these you should immediately seek legal advice.

Positive action

The Regulations permit the employer to discriminate positively, provided the employer can justify this. Your employer can also give those of a particular age or age group access to facilities for training which would help make them fit for particular work. Your employer is entitled to restrict access to training facilities to particular age groups if it reasonably appears to the employer that doing this prevents or compensates for disadvantages linked to age suffered by that age group or age range. The Regulations also permit your employer to encourage those of a particular age group or age to take advantage of opportunities for doing particular work on the same basis

Statutory authority

If your employer can show that what was done was done in order to comply with a requirement of any statutory provision then the treatment will not be unlawful age discrimination. Similarly, if the act was done for the purpose of safeguarding national security (provided the doing of the act was justified by the purpose of safeguarding national security).
There is also an exception to permit the difference in rate of payment of the national minimum wage for younger people.

Exception relating to certain benefits based on length of service

If your length of service is less than 5 years then you will not be able to complain that you have been the subject of age discrimination in relation to the award of a differential rate of benefit compared to another worker which is based on the fact that the other worker’s length of service is longer than yours.
Once your length of service exceeds 5 years your employer can still justify the way in which they use the criterion of length of service. However, the employer must be able to show that it reasonably appears that the way in which length of service is used by them in relation to the award of that benefit which places you at a disadvantage fulfils a business need. The employer can, for example, argue that the difference in the rate of the benefit encourages loyalty or motivates staff. It can also argue that it rewards experience of some or all of the workers. There are complicated rules about calculating the length of your service and whether you can compare your length of service to another worker’s. However, it is up to your employer to state how exactly the criterion of length of service has been used and in particular whether he is drawing a distinction between different groups of worker who otherwise would appear to have the same or similar lengths of service.`

Redundancy payments

The Regulations do not make it unlawful to pay differing amounts of enhanced redundancy pay to employees. Your employer can pay more to older staff or those with longer service provided that the calculation of the redundancy payment is similar to the way in which a statutory redundancy payment would be calculated. The employer is entitled to pay more by way of a week’s pay per year of service to a different age group or he may apply a greater multiplier to that figure. Finally, the employer can apply a multiplier to the whole figure at the end of the process.
If your employer arranges for workers to be provided with life assurance cover after early retirement on the grounds of ill-health, the Regulations do not make it unlawful for cover relating to that life assurance to cease when you reach the normal retirement age which would have applied to you if you had remained in employment. The Regulations also do not make it unlawful, in relation to other workers, for your employer to arrange for the cover to cease when the workers reach the age of 65.
Finally there is an exception relating to retirement. This permits the employer of an employee (but not of a worker or independent contractor) to dismiss a person at or over the age of 65 where the reason for the dismissal is retirement.


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