For individuals - FAQs

The answers provided in these FAQs do not constitute 'legal guidance' nor are they a statement of Government views.

I’ve just come out of university but the employer / recruitment agency said I needed 2 years experience to do the job, is that lawful?

It is not unlawful for an employer or recruitment agency to state that a certain amount of experience is required to do a job. This could discriminate indirectly against younger job seekers who obviously may not have been in a position to acquire the required number of years. (It can also discriminate against older candidates if the amount of experience required is being regarded as a maximum by the recruiter).

In these circumstances it is worth trying to get the employer or recruitment agency to translate the ‘years experience’ they are looking for into the skills and competencies they require suitable candidates to possess. This is particularly true where even more years of experience are being asked for.

Skills, competencies and experience gained whilst working during university or school holidays – along with practical work experience sessions - may mean you have already acquired them, even though you may not have had a full-time job previously.

I noticed a job advert which was still asking for candidates of a specific age, can I bring a tribunal claim against the employer?

No, not unless you have applied for the job and were refused it - and you believe the reason you didn’t get it was because you were either younger, or older, than the age being specified. You can only bring a case in the circumstances where you have personally been treated less favourably on the grounds of your age.

There are still a few, limited circumstances where an employer can lawfully state either a minimum or maximum age for applicants and refuse people who fall the wrong side of it. For instance this would be the case if someone under 21 applied for a job as a Heavy Goods Vehicle driver because only someone 21 or older can get a licence to drive such vehicles.

At the other end of the age scale, an employer can refuse to consider job applications from applicants whose age is six months or less away from that organisation’s own retirement age (see question and answer further below).

I was told I was too young/ too old to do the job because it would cost too much to get insurance cover for someone my age.

An employer can try to advance that justification for not considering your application – or offering you the job. However, the DTI’s guidance on the Age Regulations state that cost on its own will not usually be sufficient reason to discriminate against an employee or job applicant on the grounds of their age.

If you want to pursue this further you should consider sending the employer the DTI’s Employers’ Questionnaire. The 10 page questionnaire is designed to help you obtain information from an employer so that you can decide whether or not to bring legal action. The questionnaire also lays out the timelines for bringing a complaint.

The form warns employers that it they fail to reply within 8 weeks or they reply in an “evasive or equivocal manner, without a reasonable excuse, a court or tribunal may draw adverse inferences from that, should the complainant bring proceedings against him/her.”

You would be well advised to contact and discuss the matter with your local Citizens Advice Bureau, Community Law Centre or Community Legal Services Direct. (see the useful links page) .

I’m 26 and wanted to do an apprenticeship. My boss told me I’d have to pay for it myself but my colleague who is 25 has been offered one – and he isn’t being asked to pay anything. Can they get away with that?

Your boss has probably given you this answer because there is no public subsidy to help fund your apprenticeship because you are considered to be ‘too old’. The current requirement for any publicly funded subsidy is that you have to have started your apprenticeship before your 25th birthday.

However, as ‘cost’ on its own is not supposed to be sufficient justification for your employer to discriminate against you in terms of employment and vocational training, you should discuss the matter further with them and any staff – or union – representative you may have in your workplace.

If you are not satisfied with the outcome, then you may wish to consider seeking legal redress. (see the TAEN guide on Redress)

Can a job application form still ask me for my date of birth?

The short answer is ‘yes’. Acas’s Guidance for employers suggests that date of birth is removed from job application forms and if required is sought on a different ‘monitoring form’ which is hidden from those who are making the candidate selection.

However, there is no compulsion on you to supply your date of birth – although the impact of withholding it will be reduced if you then put down the dates you attended school or university, acquired your qualifications or your very earliest work experience. (see the TAEN Guide on Recruitment)

They said they were looking for someone in their 30s because they don’t have many people in that age group in the company. I am 43 and was turned down, isn’t that now unlawful?

The Regulations say that positive discrimination on the grounds of age is unlawful. However, it is open to employers and training providers to take so-called ‘positive action’. This means they can indicate they would welcome applications from particular age groups but does not mean they can dismiss an application from anyone who falls outside that age group – simply on the grounds of that individual’s age. (see the TAEN Guide on Exemptions)

My employer has told me they have to withdraw the extra days’ holiday and other service related benefits I receive for having worked there for over 10 years because they are no longer legal under the new law. Is that really true?

It is not necessarily true. There is a general exemption in the Regulations which cover service related pay or benefits that are accrued by employees with up to five years of service with their employer. However there are a variety of ways in which the ‘years service’ can be calculated.

When it comes to any service related pay and benefits which are accrued beyond the initial 5 years, then an employer – if challenged – would have to be able to demonstrate they had been able to reasonably conclude that these ‘benefits’ assisted with such items as staff retention, staff motivation, loyalty and/or commitment.

This is a much lower hurdle than the ‘objective justification’ which is required elsewhere within the Regulations for an employer who wishes to treat individuals differently on the grounds of their age. (see the TAEN Guide on Exemptions).

Can an employer refuse to offer me a job because I am too close to retirement age?

Yes, they can. If you are within 6 months of that organisation’s retirement age, they can refuse to consider your application or offer you the job. However, it could be unlawful if you were more than 6 months younger than that age. (see the TAEN Guide on Recruitment).

I was told I was turned down for the job because the company wouldn’t get a pay-back on the training they’d have to give me before I retired. I’m not even 60 yet, so is that lawful?

This is a ‘difficult area’ under the Age Regulations because it relies on what might be considered a reasonable pay-back period on any training you might require. At the moment we don’t have any case law we can refer to. But if we are talking about a few days’, weeks’ or even months’ training and you are still several years away from the organisation’s retirement date, then this would be a difficult justification for an employer to advance.

Such a justification for an employer is likely to be easier if the training you require would take several years to complete. (see the TAEN Guide on Training)

My employer has told me that now I’m 60, I’ll have to have an annual medical in order to see whether I’m still capable of doing the job. Can they really do this?

The whole area of health and medical checks is controversial. ‘Health and Safety’ is one of the so-called ‘legitimate aims’ which an employer may be able to ‘cite’ for treating employees ‘less fairly’ on account of their age. Employment lawyers appear to favour the line that if an employer is going to insist on medical checks for their employees, they would be best advised to adopt an ‘age neutral’ approach and treat all employees the same in terms of the requirement to have periodical check-ups – irrespective of their age.

I work as an unpaid volunteer, am I covered by the new legislation?

No, unpaid volunteers are excluded from the scope of the Age Regulations.

My company says it is keeping its retirement age of 60 but I thought the new law introduced a retirement age of 65 that employers have to abide by. I’m coming up to 60 and want to stay on working. What can I do about it?

Unless your company can objectively justify having an earlier retirement age, it will either have to adopt the new National Default Retirement Age of 65, introduce a later one (e.g. 67) or do away with any fixed retirement age at all.

However, if your employer doesn’t make one of these changes of their own volition, it may mean that employees, the staff association or any recognised trade union (if there is one) will have to raise the issue and may need to bring legal action to force the employer’s hand.

I am 61 and at the interview I was told that if I got the job I was applying for, I’d be too old to join the pension scheme. Is this correct?

Yes, within certain criteria employers can still use age as a factor when it comes to their occupational pension schemes. There is a fairly general set of exemptions which apply to company pension schemes within the Age Regulations. Minimum and maximum ages of entry into a company’s pension scheme are amongst the exemptions – as can be age related contributions amongst other things.

Under the new legislation will I have to work until I am 65 or will I be able to retire before 65 if I feel like it?

No the new Regulations do not mean you will have to work until you are 65. If you wish, need or can afford to retire at an earlier age then you will still be able to do so. (see the TAEN Guide on Retirement)

I feel I have been discriminated against. How can I take action?

Proving that you have been discriminated against can often be difficult because it means that you have to gather and present evidence from which Acas – and ultimately an Employment Tribunal or County Court – could reasonably infer that this has indeed been the case. Once you have done that however, the burden of proof falls on the employer or training provider to prove they did not treat you less favourably on account of your age.

(See the TAEN Guide on Redress)

Does the legislation cover flexible retirement?

No, not specifically. However, the Acas Guide for employers on the Regulations does mention flexible retirement as part of a best practice approach which employers should adopt. Although this doesn’t carry the same weight as the law itself, Tribunals do tend to benchmark the actual behaviour of employers in cases brought before them against ‘good practice’.

My employers have told us they will be making some employees redundant. In the past they have used the principle of last in, first out in the selection process. Do the new Regulations mean they will have to adopt a different approach?

Yes, they will – unless your employers were able to objectively justify maintaining their previous approach to selection for redundancies.

The problem with using a so-called LIFO (last in, first out) approach is that it tends to indirectly discriminate against younger employees, because by definition, they are likely to have fewer years service in the organisation. Conversely, a so-called FIFO approach (first in, first out) indirectly discriminates against older workers who will tend to have been in the organisation for longer.

Any redundancy selection process which relies on either the age of the employee or the length of their service is going to be difficult for an employer to justify – if it is challenged. (see the TAEN Guide on Redundancy)