Age discrimination and recruiters
Since 1 October 2006, age discrimination has been unlawful in the UK. This has been heralded as the biggest shake-up of employment law since the 1970’s, when sex and race discrimination became unlawful.? Workers of all ages are now protected from discrimination at all stages of the employment relationship, starting with recruitment, and there are some particular areas which recruiters need to look out for.
Policy and language
Recruitment and application policies and procedures must comply with the new age discrimination legislation.? In particular, the following areas should be examined: job advertisements, job descriptions, person specifications, interview questions, company publicity and recruitment materials.
| Avoid | Comment |
| Requests for age or date of birth (which should be removed from application forms). | Instead details of age should be included in diversity monitoring forms to be retained by the employer’s HR department. |
| References to age or a certain number of years of experience in job descriptions or candidate specifications. | Instead concentrate on the quality and relevance of experience, or else be in a position to justify the requirement. |
| Words such as “young”, “dynamic”, “senior”, “reliable”, “ambitious”, “mature” and “energetic” or “needed to join a lively team”. | All of these words could be seen to have age related connotations. |
| The term “graduate” as it is associated with someone in their early 20s. | Instead advertisements should make it clear that it is qualifications that are relevant, and not age. |
| Phrases such as “only people with GCSEs need apply”. | This discriminates against many older people who left school before GCSEs were introduced.? The qualifications requested in job adverts must not disadvantage any particular age group.? Therefore, alternative ways of asking for the required experience should be considered.? For example, ask instead for GCSEs or equivalent experience. |
| Age-specific images. | Ensure that any images used do not communicate an age discriminatory message. |
Interviewing
Recruiters need to make sure that they are not discriminating on the grounds of age during the interviewing process.? To reduce the likelihood of this, if possible appoint a mixed-age interview panel and include an objective double-checking process in the selection decision.? Recruiters should ask candidates only job-related questions and use a selection criteria to mark candidates against.? This serves to not only provide a record of the fairness of the process but also helps with the decision-making.?
Employment agencies
There are specific provisions for employment agencies.? It is unlawful for an employment agency to discriminate against a candidate on the grounds of age when providing its services or its terms of business.? For example, an agency could not refuse to add someone to their database of candidates because the candidate was 60 years old and they felt that their clients would only be interested in younger candidates.?
Agencies will also be held liable if they follow the discriminatory instructions of a client.? For example, if a marketing company instructs an agency to find them a young marketing assistant who might suit their “young and trendy” image, and the consultant recruits on this basis, this would be discriminatory.?
The agency will not be liable for recruiting in an age discriminatory manner if they can show either:
- That there was a genuine occupational requirement; or
- That their client had made an incorrect statement that there was a genuine occupational requirement, and that it was reasonable for the agency to rely on this statement.?
Therefore if a client seeks to impose a genuine occupational requirement on any recruitment process, it would be prudent for the agency to obtain written confirmation of the details from the client.
Employment advertising agencies
As yet it is not entirely clear whether employment advertising agencies will be liable for discriminatory recruitment adverts.? However it is worth bearing in mind that advertisers may be liable as an agent of their client.? Therefore advertising agencies should discuss any concerns they have about potentially age discriminatory wording or images with their clients.
The law
The law prohibits direct and indirect discrimination, harassment and victimisation on the ground of age.
Direct discrimination will occur if someone treats a candidate less favourably, on the grounds of their age, than they treat or would treat other candidates in an equivalent situation.? For example, an advertisement stating that only candidates under the age of forty should apply for a job is directly discriminatory.? Indirect discrimination will occur when a provision, criterion or practice which is applied to all candidates causes a particular disadvantage to candidates within a certain age group.? Requiring GCSEs (as opposed to requiring GCSEs or equivalent experience) is indirectly discriminatory, as described in the table above.?
It will be lawful to directly and indirectly discriminate on grounds of age, if the discrimination can be objectively justified and shown that it is a proportionate means of achieving a legitimate aim.? If the legitimate aim can be achieved by a less discriminatory means then this must take priority.?
In some circumstances, if it is a genuine occupational requirement that the candidate must be of a particular age, it will be lawful to discriminate on grounds of age.? It is necessary to consider the context and nature of the work before deciding whether this exception can apply.? For example, the role of a young character in a film may have to be played by a young actor, or a bar tender serving alcohol will have to be a minimum of 18 years old.?
Penalties
An agency which commits an offence under the new age discrimination legislation could be liable to pay potentially unlimited compensation to the candidate discriminated against.? The tribunal also has the power to make a declaration relating to the rights of the candidate and confirming that discrimination has taken place.? In addition, a recommendation that the agency take action to remove the discriminatory practice may be made.
Conclusion
To avoid falling foul of the new legislation always make sure that your client’s instructions are non-discriminatory and that your policies and procedures are objective and clear.? In addition, it is a good idea to keep appropriate records so that if your policies and procedures are questioned you can show that they were fair and not age related?