Age and sickness absence

Occupational sick pay entitlement is an example of a benefit that may be linked to length of service and therefore potentially a cause of indirect discrimination relating to the protected characteristic of age.

However, benefits which are linked to a length of service of five years or less are always allowed under the Equality Act 2010 and employers are sometimes allowed to link benefits to a length of service of more than five years.

They must, however, be able to produce evidence to show that an age-related difference fulfils a business need, for example, because they want to encourage loyalty or reward higher levels of experience. They must also show that the needs of the business are more important or outweigh the discriminatory effect of the policy on younger/older employees.

A policy that discriminates on age is more likely to be regarded as legally justified if it is the product of consultation, or collective bargaining with a union where one is recognised (Seldon v Clarkson Wright and Jakes No 1 [2012] UKSC 16, Loxley v BAE Systems Limited [2008] ICR 1348, HM Land Registry v Benson [2012] ICR 627).