A reference to care includes a reference to supervision.
Contributions to personal pension schemes
A Minister of the Crown may by order provide that it is not an age
contravention for an employer to maintain or use, with respect to
contributions to personal pension schemes, practices, actions or decisions
relating to age which are of a specified description.
An order authorising the use of practices, actions or decisions which are not
in use before the order comes into force must not be made unless the
Minister consults such persons as the Minister thinks appropriate.
“Personal pension scheme” has the meaning given in section 1 of the Pension
Schemes Act 1993; and “employer”, in relation to a personal pension scheme,
has the meaning given in section 318(1) of the Pensions Act 2004.
Non-contractual payments to women on maternity leave
A person does not contravene section 36(1)(b) or (2), so far as relating to
pregnancy and maternity, by depriving a woman who is on maternity leave
of any benefit from the terms of her employment relating to pay.
The reference in sub-paragraph (1) to benefit from the terms of a woman’s
employment relating to pay does not include a reference to—
maternity-related pay (including maternity-related pay that is
pay (including increase-related pay) in respect of times when she is
not on maternity leave, or
pay by way of bonus in respect of times when she is on compulsory
For the purposes of sub-paragraph (2), pay is increase-related in so far as it
is to be calculated by reference to increases in pay that the woman would
have received had she not been on maternity leave.
A reference to terms of her employment is a reference to terms of her
employment that are not in her contract of employment, her contract of
apprenticeship or her contract to do work personally.
“Pay” means benefits—
that consist of the payment of money to an employee by way of
that are not benefits whose provision is regulated by the contract
referred to in sub-paragraph (4).
“Maternity-related pay” means pay to which a woman is entitled—
as a result of being pregnant, or
in respect of times when she is on maternity leave.
788. This paragraph permits employers to provide redundancy schemes which mirror the
statutory redundancy payments scheme contained in Part 11 of the Employment Rights Act
1996 but offer more generous terms
789. The statutory redundancy scheme at Part 11 of the Employment Rights Act 1996
(“ERA 1996”) requires an employer to make a payment upon redundancy, the amount of
which is dependant upon the employee’s age, length of service, and weekly pay (subject to a
cap: see Schedule 227 ERA 1996). The statutory redundancy scheme is lawful under the
Directive as it is objectively justified under Article 6.1 of the Directive.
790. An employer who makes a redundancy payment to an employee in accordance with
Part 11 ERA 1996 does not have to justify it. Both the statutory authority exemption (in
Schedule 22) and this regulation make it clear that the employer is acting lawfully, even
though the payment is calculated using age related criteria.
791. But this paragraph is not aimed at such employers. The principal object of this
provision is to assist those employers who base their redundancy schemes on the statutory
scheme but who are more generous than the statutory scheme requires them to be.
792. This exception is designed to replicate the effect of an existing exemption in
regulation 33 of the 2006 Regulations.
• An employer may pay qualifying employees an enhanced redundancy payment based
on their actual week’s pay rather than the maximum amount as specified in section 227
ERA 1996 (currently £350).
• So an employee (P) aged 45 with 18 years continuous employment earning £600 a
week would receive one and a half weeks pay for each year of employment in which
he was not below the age of 41 and one week’s pay for each year of employment in
which he was not below the age of 22 so P would receive the following: 3 x (1.5 x
£600) + (15 x £600) = £11,700.
• An employer may pay qualifying employees an enhanced redundancy payment
calculated in accordance with section 162 of ERA 1996 but after calculating the
appropriate amount for each year of employment, the employer may apply a multiple
of two rather than one. So the employer could pay P £23, 400 rather than £11,700.
• Alternatively, the employer could apply the maximum amount of £350 to P’s payment
but apply a multiple of 2 and pay P the following: 2 x [3 x (1.5 x £350) + (15 x £350)]
= 2 x (£1575 + 5250) = £13650.
Life assurance: paragraph 14
793. This paragraph provides an exception for employers who provide life assurance cover
to workers who have had to retire early on grounds of ill health.
Benefits dependent on marital status, etc.
A person does not contravene this Part of this Act, so far as relating to sexual
orientation, by doing anything which prevents or restricts a person who is
not married from having access to a benefit, facility or service—
the right to which accrued before 5 December 2005 (the day on which
section 1 of the Civil Partnership Act 2004 came into force), or
which is payable in respect of periods of service before that date.
A person does not contravene this Part of this Act, so far as relating to sexual
orientation, by providing married persons and civil partners (to the
exclusion of all other persons) with access to a benefit, facility or service.
Provision of services etc. to the public
A does not contravene a provision mentioned in sub-paragraph (2) in
relation to the provision of a benefit, facility or service to B if A is concerned
with the provision (for payment or not) of a benefit, facility or service of the
same description to the public.
section 36(2) and (4);
sections 41(2) and (6) and 42(2) and (6);
sections 46(6) and (8) and 47(6), (7), (9) and (10).
Sub-paragraph (1) does not apply if—
the provision by A to the public differs in a material respect from the
provision by A to comparable persons,
the provision to B is regulated by B’s terms, or
the benefit, facility or service relates to training.
“Comparable persons” means—
in relation to section 36(2) or (4), the other employees;
in relation to section 41(2) and (6), the other partners of the firm;
in relation to section 42(2) and (6), the other members of the LLP;
in relation to section 46(6) or (8) or 47(6), (7), (9) or (10), persons
holding offices or posts not materially different from that held by B.
the terms of B’s employment,
the terms on which B has the position as a partner or member, or
the terms of B’s appointment to the office.
A reference to the public includes a reference to a section of the public which
It is not a contravention of this Part, so far as relating to relevant
discrimination, to do anything in relation to an annuity, life insurance
policy, accident insurance policy or similar matter involving the assessment
the thing is done by reference to actuarial or other data from a source
on which it is reasonable to rely, and
794. This clause is designed to replicate the effect of the exception at regulation 34 of the
795. Life assurance cover is usually provided in respect of people below the age of 65 (or
the employer’s normal retirement age if different). Such cover is not provided in respect of
older people because, as the probability of death increases, it becomes more and more
expensive to provide. If employers were no longer able to impose – or had to objectively
justify – a “cut off” for the provision of such cover to those who have retired early, there is a
real risk they would simply “level down” in other words, they would cease to offer it to
anyone. This exception is intended to avoid that happening.
• An employer who has no normal retirement age provides life assurance cover to those
in his employment which ceases when an employee reaches 65 when an employee
retires early due to ill health. This is lawful.
• An employer who operates a normal retirement age of 70 provides life insurance
cover to those in his employment which ceases when an employee reaches the age of
70 when an employee retires early due to ill health. .
796. This paragraph creates an exception from the prohibition of age discrimination in
employment and certain other work relationships for benefits which relate to the provision of
child care, and to which access is restricted to children of a particular age group. The
exception applies not only to natural parents, but also to others with parental responsibility for
797. The exception covers benefits which relate to the provision of care for children aged
798. Following the ruling of the European Court of Justice in Coleman v Attridge Law, it is
direct discrimination for an employer to treat an employee less favourably on grounds of the
age of an employee’s child. There is, therefore, a potential impact on the provision of
facilities, such as childcare, where access is limited by reference to the child’s age.
799. The exception will allow employers to continue to offer employees child care
facilities based on the age of a child without being open to a challenge of direct discrimination
• An employer may provide a crèche for employees’ children aged two and under; or a
holiday club open only to employees’ children aged between 5 and 9. In each of these
examples, the exception will allow an employer to discriminate against employees
because of their association with a child who does not fall within the specified age
• The exception does not apply to employee benefits which do not have a close
relationship with the provision of childcare. For example, if an employer offers
luncheon vouchers, gym membership or a company car only to those employees with
children of a particular age group, the exception does not apply as none of these
benefits involves childcare.
• Neither does the exception apply to benefits conferred as a result of the employee’s
employment, but applying directly to the child, where childcare is not involved. For
example, an employer may offer private healthcare to employees’ children up to a
certain age, or use of the employer’s services (e.g. free train tickets if the employer is a
train company) by such children.
Contributions to personal pensions schemes: paragraph 16
800. This paragraph gives a Minister the power to specify practices, actions or decisions
relating to age in respect of employer contributions to personal pension schemes that an
employer can use without breaching a non-discrimination rule.
801. Exceptions to the non-discrimination rule in relation to age in respect of employer
contributions to personal pension schemes are currently set out at Schedule 2 to the
Employment Equality (Age) Regulations 2006 (SI 2006/1031).
Non-contractual payments to women on maternity leave: paragraph 17
802. This paragraph sets out an exception to the prohibitions on pregnancy and maternity
discrimination by employers which allows an employer not to offer an applicant or provide an
employee who is on maternity leave the benefits of the non-contractual terms and conditions
of her employment. It also explains what is and is not covered by this exception.
803. This paragraph is designed to replicate the effect of provisions in the Sex
Discrimination Act 1975. It does for non-contractual terms and conditions of employment
relating to pay what is done for contractual terms in clause 69.
• An employer would not have to pay a woman on maternity leave a discretionary
bonus if the only condition of eligibility for the bonus was that the employee must be
in active employment at the time of payment.
• If a discretionary bonus amounted to retrospective payment for time worked over a
specific period (such as the past year) during which a woman took maternity leave, the
employer must include any part of that period the woman spent on compulsory
maternity leave in calculating the bonus.