EMPLOYER’S QUERY:
For cost reasons, we have limited the availability of health screening as a benefit to employees over the age of 40 years.
We propose to continue to do this after 1 October because we believe our employees value this benefit. Will this be lawful under the new age regulations?
ADVICE:
The Employers Forum on Age would urge caution in this scenario.
Offering this benefit to employees over the age of 40 years is direct discrimination and would require a full objective discrimination.
You might be able to identify a suitable legitimate aim – perhaps protecting health, welfare and safety – but you would have to demonstrate that this response was proportionate and the aim you were hoping to achieve could not be realised in any other, less discriminatory way.
You might argue that employees above this age are more likely to suffer from such illnesses such as cancer or heart disease, but you would need hard medical evidence to back this up.
SOLUTIONS?
The Employers Forum on Age has identified two less risky options:
Option 1 Rather than only offering the benefit to those aged over 40 years, you could link the benefit to length of service. It would be worth calculating any possible difference in cost to the business, if the benefit was made available to those with more than say 15 or 20 years’ service. This is indirectly discriminatory and, although it would fall outside the general exemption for service-related benefits of five years, you wouldn’t have to make a full objective justification, merely show that your actions were reasonable.
Option 2 Alternatively, you could link the benefit to grade, but you should bear in mind this may only provide a benefit to those staff who need it least. Freda Line, head of employer relations at the Employers Forum on Age, The Employers Forum on Age would urge caution in this scenario.
Offering this benefit to employees over the age of 40 years is direct discrimination and would require a full objective justification. You might be able to identify a suitable legitimate aim – perhaps protecting health, welfare and safety – but you would have to demonstrate that this response was proportionate and the aim you were hoping to achieve could not be realised in any other, less discriminatory way.
You might argue that employees above this age are more likely to suffer from some illnesses such as cancer or heart disease, but you would need hard medical evidence to back this up.