Legal
The Insider Guide to Age Laws

The EFA's guide contains advice on the key aspects of policy and practice identified by members of the EFA. We also include as much relevant case law as possible with 'real-life' scenarios, so that employers can easily recognise areas of risk, and checklists.

It remains unclear what will be considered an appropriate objective justification and what evidence an Employment Tribunal might expect from an employer defending an age discrimination claim. To assist employers who wish to explore justifying (possibly discriminatory) policies, we examine what might constitute a 'legitimate aim' and what type of evidence might be required. But this comes with a health warning; we do not encourage any employer to maintain policies or practices which discriminate on the basis of age.

Summary of Age Regulations

When people join you
  • The direct use of age limits is unlawful.

  • Indirect ageism (where people of a particular age group are disadvantaged) is also unlawful.

  • Employers will be able to try and justify both direct and indirect discrimination.

  • The law allows employers to refuse to recruit people within six months of their retirement age, or 65 if you don't have one.
While people are with you
  • Harassment and victimisation are unlawful and can never be justified.

  • It will be unlawful to unjustifiably exclude someone from training on the grounds of their age.

  • Pay and benefits based on age will be unlawful (unless justified)

  • Employers will be able to continue to pay as per NMW pay bands and scales, but no more (unless justified)

  • Employee benefits based on service up to five years will be exempt while benefits over five years must be justified

  • Most, but not all, age related elements of occupational pension schemes will be exempt.
When people leave
  • A 'national default retirement age' will allow employers to 'compulsorily' retire people at 65 without justification. Employers will have to objectively justify a retirement age below 65.

  • Irrespective of whether you set a retirement age below 65, at 65, or above 65 you will have to follow the 'Retirement Process'.

  • Individuals have 'a right to request to stay on' and employers have a 'duty to consider that request'.

  • Upper age limits for unfair dismissal are removed

  • Selection for redundancy on age or service grounds will be unlawful unless objectively justified.

  • The statutory redundancy payment scheme (SRPS) remains in place. Only enhanced redundancy compensation schemes that 'mirror' the statutory scheme will be automatically lawful.

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Compliance and Beyond

Think you're ready for the age laws? As a taster, can you answer yes to these questions?
  • Have you reviewed and removed unjustified age bias from job descriptions and person specifications?


  • Can you justify any periods of experience required?


  • Have you removed age linked language and images from job adverts?


  • Can you provide evidence that training nominations and promotions take up and outputs are not age related?


  • Have you put in place a zero tolerance approach to inappropriate language or assumptions based on age?


  • Have you checked all your service related benefits to ensure that they are either covered by the 5 year exemption or can be justified under the general provision?


  • If you operate an enhanced redundancy compensation scheme have you checked that it mirrors the Government SRPS?


  • Have you agreed a retirement age?


  • Have you trained colleagues in the issues surrounding the Retirement Process?


  • Have you put in place additional pension arrangements for employees who stay on beyond the maximum age of your existing scheme?


The EFA's Insider Guide provides a checklist for each key policy area, and suggests further action you can take to protect your business.

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Inside Track

To help you minimise the risk of age claims, the EFA recommend you:

Avoid using age wherever you can. Discrimination law enables an individual to bring a claim if they can demonstrate that their 'age' may have had an impact. It will be up to you to defend yourself. Avoid practices where someone may 'infer' age was an issue, e.g. asking for date of birth on an application form.

Assess your risk before attempting an 'objective justification'. The costs associated with losing a case should influence your approach.

Be careful in your treatment of existing employees, once a person is working for you they can easily see who is or isn't getting promoted, trained, or participating in a leadership development programme.

Transparency is vital, you not only need to be fair, you need to be seen to be being fair.

Record keeping is important. Failure to keep records has led to Irish employers being penalised - the assumption being they are hiding discrimination.

Training, especially for managers is incredibly important, not only to avoid claims but to support you when defending claims.

Age could be linked with both sex and disability discrimination. Make sure that you don't expose yourself to claims on other grounds, particularly when you retire people.

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Impact Assessment Checklist

Try to avoid using age wherever possible, if you think you can/need to justify a discriminatory policy, first:

Ask yourself if age (or time-linked experience) really matters

Explain why age (or time-linked experience) matters

Check that you are not using age (or time-linked experience) as a proxy for something else (such as qualifications or fitness)

Confirm that your reasoning is not based on assumptions, but on hard facts and figures (evidence)

Be sure that you can't achieve the same business aim another way.

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