Is it lawful for employers to discriminate in favour of a person of a particular age or persons in a particular age group?

Section 158 of the Equality Act 2010 allows a person (P) to take positive action in the following circumstances:

  • where P reasonably thinks that persons of a particular age group suffer a disadvantage connected to that age group, P may take any action that is a proportionate means of enabling or encouraging persons to overcome or minimise that disadvantage;
  • where P reasonably thinks that persons of a particular age group have needs that are different from the needs of persons not of that age group, P may take any action that is a proportionate means of meeting those needs; or
  • where P reasonably thinks that participation in an activity by persons of a particular age group is disproportionately low, P may take any action that is a proportionate means of enabling or encouraging persons in that age group to protected characteristic to participate in that activity.

"Age group" means "a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages" (s.5(2) of the Equality Act 2010).

Section 159 of the Equality Act 2010 allows an employer to treat an applicant or employee with a protected characteristic more favourably in connection with recruitment or promotion than someone without that characteristic who is as qualified for the role. In the context of age this means that employers can treat people of a particular age group more favourably than others, in limited circumstances only and provided that they meet specific conditions. The employer must reasonably think that people with the protected characteristic suffer a disadvantage or are under-represented in that particular activity. Taking the positive action must be a proportionate means of enabling or encouraging people to overcome the disadvantage or to take part in the activity. Employers must not have a policy of treating a particular age group more favourably; they should decide whether or not to take positive action on a case-by-case basis.