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November 2006
Age Discrimination Legislation
The new laws to protect employees and prospective employees from age discrimination came into force on October 1st. To find out how they will affect the recruitment process in large organisations, we spoke to Charles Boyle, Barrister and Commercial Adviser to the Recruitment and Employment Confederation.
Welcomed by business?
 Boyle welcomes the legislation: “It’s a worthy piece of public policy- we live in a time where the workforce is ageing, and that ageing workforce is also worried about its future- pension provision for example. It makes macro-economic as well as moral sense to protect the ability of older workers to continue in employment.”
The CBI, usually critical of additional legislative burdens, has also been supportive of the move; and Boyle believes that this is because it will help businesses in the long run: “Of course it creates new dangers for businesses- specifically the threat of litigation from unsuccessful applicants. But the business case for diversity has been proved time and again. Research shows that a diverse workforce (not only in terms of age but also sex, race, etc.) gives a company a broader appeal to its customer base and generally produces happier employees. CEO’s will also hopefully notice that the pool of talent at their disposal is wider than they might have thought- a particularly important point to make at a time when there are reportedly skills shortages.”
Where this law is unique, though, is in its scope. Boyle says “We have of course had several rounds of anti-discriminatory legislation. Whilst anyone could take advantage of their rights under these laws, they were however designed to protect minorities. As all of us hope to reach old age sometime (and all of us were young once if not still!), this is the first time that such a law effectively protects everyone.
60-Second Primer
Boyle summarises the legislation as follows: “It is unlawful to refuse to give an applicant a job, access to training, or promotion if the reason for the refusal is on the grounds of their age. That doesn’t mean that you must give a job to an older or younger person. However, if an older or younger person were as equally qualified as the successful applicant for a position, employers’ would have to prove, were they challenged in a tribunal, that they did not discriminate against them on the grounds of their age.”
The law also outlaws indirect discrimination: applying a procedure, criterion or practice or use of nuance particularly through language which might exclude an age group. For instance, legal advisers counsel against the use of terms like “recent graduate” in job descriptions, as older applicants are less likely to be a graduate, and even more unlikely to be a recent graduate.
Similarly, Boyle advises not to advertise a requirement for, e.g. “8 years experience”. The Regulations do not expressly forbid such practice but doing so could open the company up to a challenge: you would have to be able to prove in court that a specific length of time was required without which the applicant could not possibly fulfil the specific requirements of the job description, and this will generally be difficult. “We strongly advise instead that recruiters do not ask for a specific level of experience, but rather itemise the skills and competencies which they require- skills which may indeed imply that some years in the field would be necessary, but which do not open the door to a challenge by explicitly closing out less experienced applicants.” The more objective your benchmark requirements are for your job spec (for example, recognised qualifications where required, core skills), the more solid your legal position.
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