Age discrimination

At our company, staff with four or more years’ service are entitled to extra holidays. Clearly, employees who are under 20 years old are not able to fulfil that criterion, because they did not start work until they turned 16. Could this amount to age discrimination?

Most people are focusing on how the new age legislation (coming into force in October 2006) will affect the treatment of older workers. This is an example of how younger workers will also benefit from protection under the regulations.

Your scheme could be attacked on the basis that it is ‘indirectly discriminatory’. The four-year rule is a criterion applying to everyone, but it puts a particular age group at a disadvantage. Staff in the under-20 age group are at a particular disadvantage, because they are unable to qualify for the additional holiday.

However, there are exemptions in the new legislation that you may be able to rely on. The first protects schemes where no more than five years’ service is taken into account. It will be effective as long as:

  • the four-year rule is applied to all staff equally

  • non-continuous service as well as continuous service is taken into account

  • any period of absence is disregarded – including career breaks.

Another exemption will protect schemes that take more than five years’ service into account. These schemes will be protected provided you can reasonably demonstrate that there is an advantage to the company in ‘rewarding loyalty, maintaining motivation or recognising experience of longer serving members of staff’. Again, you will have to show that you apply the scheme equally to all staff and also take into account both continuous and non-continuous periods of service.

by Leah de Vries, employment law solicitor at Yorkshire law firm Andrew M Jackson

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