Could an employee file for age discrimination if an organisation pays a lower salary than someone who has worked for the company for a longer period? Peter Duckitt shares his views.

It might be that you have a mix of ages all being treated the same (for example, some younger, long serving employees being paid more that older shorter service employees doing the same job), in which case you might be able to argue that it is not discriminatory. Even so, it is likely to be indirect discrimination (longer serving employees are more likely to be older than shorter serving).

However, if you have objective evidence to show that your pay system is necessary for you to attract and retain staff then you might be able to defend a discrimination claim. It depends whether you fancy possibly being a test case!

However, if you want to take steps to rectify the situation, one way might be to determine the “normal” rate for the job and then red-circle the additional amount, on an individual basis, for each person paid above that level. Future pay increases should then be the same for everyone, based on the “normal” job rate with the red-circled amount remaining static until the person leaves or is promoted. This is likely to be seen to be fair and also has less immediate effect on pensions, etc.

For example if the normal rate is £100 and someone is being paid £110 then you red-circle £10. Next year if the normal rate goes to £105, eveyone gets that amount plus the red-circled person continues to get the additional £10 (which never increases).

All future new employees and promoted employees should be given the “normal” rate for the job (assuming you do not have performance related pay).