Where indirect discrimination (or direct age discrimination) can be justified, the employer has to show that the discrimination is a proportionate means of achieving a legitimate aim.

• The aim must amount to a real need e.g. a business need such as encouraging and rewarding loyalty; or ensuring health, welfare and safety of employees and public.

This requires an objective test to justify the discrimination:

• Does the means (what they are doing) achieve the aim?
• Are the means appropriate (is there no reasonable alternative?)
• Is it proportionate – balance the effect of discrimination against the aim itself

Examples:

• Where a long and expensive training process is needed before starting a job, it could be justifiable to not recruit people over 60.
• Saving costs alone (eg the expense of a personal assistant for a disabled employee) will not necessarily be justifiable.
• Not providing prayer rooms due to lack of space and expense of refurbishment, could be justifiable.