Age discrimination and employee share schemes
Produced in partnership with Sam Whitaker of Shearman and Sterling LLP
Age discrimination and employee share schemes

The following Share Incentives guidance note Produced in partnership with Sam Whitaker of Shearman and Sterling LLP provides comprehensive and up to date legal information covering:

  • Age discrimination and employee share schemes
  • Age discrimination—the basic principles
  • Objective justification
  • Service-related benefits exemption
  • Exemption for meeting statutory requirements
  • The effect of breaching age discrimination requirements
  • Particular age discrimination issues relating to share schemes

The purpose of this Practice Note is to explain the key age discrimination issues that can arise in relation to the design and operation of various different types of employee share schemes. It explains the basic principles of direct and indirect age discrimination and various exemptions and justifications that may be relevant and looks at certain specific age discrimination issues that may arise in connection with employee share schemes.

Age discrimination—the basic principles

The Equality Act 2010 (EqA 2010) sets out the framework of the law on age (and other types of) discrimination. Essentially, there are two forms of unlawful age discrimination that may be relevant: direct discrimination and indirect discrimination. There are also separate concepts of harassment related to age and victimisation relating to age discrimination but these concepts are unlikely to be relevant to employee share schemes and so are not discussed here.

Direct age discrimination

Direct age discrimination occurs where, because of age, a person (A) treats another person (B) less favourably than A treats or would treat others.

The individual seeking to establish discrimination will need to show that he/she has been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

The circumstances are those which the employer has taken into account in deciding to treat the individual as it did,