Age Discrimination and Recruitment

Posted 24/09/2012

The Equality Act 2010 governs equal opportunities in the recruitment process, outlawing discrimination on grounds of nine “protected characteristics”, one of which is Age.  Discrimination can be against a person directly, in connection with terms offered, or in relation to any arrangements an employer makes for deciding who to offer employment to.

As far as Age is concerned, this can pose particular problems when advertising for a role.  An employer can find itself liable if recruitment agents, for example, undertake recruitment for it which is discriminatory, and the instructions given to such agents are therefore very important.

ACAS guidance suggests that references to age, however oblique, in job descriptions or adverts should be avoided, including asking for a particular number of years’ experience, for example. ACAS’s view is that the term “graduate” for example can be interpreted as a “code” for somebody in their early 20s, so an advert should make it clear that it is qualifications that are relevant and not age.

Early cases in the Tribunals upheld fairly obvious forms of Age discrimination in the recruitment advertising process.  These included an advert requiring a candidate to be “in the first five years of career” and another requiring the candidate to show “youthful enthusiasm”.

In one case where the employer had advertised a position for “a dynamic young accountant” and a 53 year old male was not shortlisted, the employer was able to give evidence to demonstrate that others older than the complainant had applied for the post and had gone on to be shortlisted – hence they were able to show that the decision not to shortlist the complainant was unrelated to his age. This is a high risk strategy and probably ill advised language to use, even if the process is otherwise fair and transparent.

The emphasis in adverts needs to be on the skills and qualifications required, and not qualities which may directly or indirectly be associated with age, young or old, and therefore risk creating a need to show that age is not the reason for not shortlisting or recruiting.  

Of some comfort is that where job adverts do refer to “school leavers” or “recent graduates”, for example, and an individual has no actual interest in obtaining the post in question but nonetheless applies and claims discrimination, the Tribunal have gone on to find that this is unreasonable conduct by the complainant and ought to merit adverse cost orders.

Training and guidance is essential in all aspects of recruitment, including advertising and instructions to agents, and recruitment should be a well documented process so that paper evidence is available to substantiate reasons behind decisions in the event that they are challenged.

Of course once in employment, and with removal of the default retirement age, the question of aging employees working well beyond historic “normal” retirement age is perhaps a greater challenge employers will face in years to come.