RECRUITMENT. Age Discrimination. special reports

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1 RECRUITMENT Can the employer be liable for publishing a discriminatory advertisement? The Regulations do not make discriminatory advertisements unlawful as such. However, the wording in advertisements may show an intention to discriminate on the grounds of age and a job applicant whose application for employment is rejected (or who doesn t apply because the wording makes them ineligible on age-related grounds) may bring a claim of age discrimination and point to the wording of the advertisement as evidence of discrimination. In such circumstances, any compensation is likely to be limited to an injury to feelings award, unless the job applicant can persuade the employment tribunal that they would have been offered the position had it not been for the age-specific or age-suggestive restrictions. Choose very carefully the language used in job advertisements. Can an employer specify age limits for a job? It s common for employers to stipulate job requirements that are directly or indirectly age discriminatory. These include the use of age limits and experience requirements. The use of age limits including age ranges as a requirement for a post is directly discriminatory and subject to the test of objective justification. Whether or not an age requirement is objectively justified will have to be determined by the employment tribunal and will depend on the circumstances of the particular case. For example, it may be objectively justified to fix a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement. Employers often purport to adopt age limits in recruitment for health and safety reasons, to portray a particular business image, to appeal to a particular clientele or to ensure that new members of staff fit in with the business. However, it is highly unlikely that they will be able to objectively justify these types of requirements because, in many cases, they are themselves tainted with age discrimination. Recruitment based on stereotypical assumptions about age (including the levels of fitness of people of a certain age group) will not be justified. In the case of required health and fitness levels for particular roles, a less discriminatory way of dealing with the problem would be to require all potential new recruits to pass a health and fitness check. Some examples: A nightclub attracts customers in their early 20s and so wishes its bar staff to be between the ages of 18 and 28. If this requirement is used because the nightclub wants its staff to project a certain image or to reflect the demographics of its clientele, it is extremely unlikely that it will be able to justify the requirement as a legitimate aim. A maximum age of 35 is specified for a new post because the job involves working as part of a team where all of the other members are in their 20s and early 30s and they socialise together in the local wine bar. The employer feels that an older person would not fit in with the team and would not be willing to socialise. Again, it is highly unlikely that this requirement will be justified as a legitimate aim because the age requirement has been adopted on the basis of ageist assumptions. In addition, a requirement to socialise can in itself be age discriminatory as those with childcare or family commitments may find themselves disadvantaged (this could also amount to a disadvantage on the grounds of sex or religion). 15

2 A supermarket decides to limit its recruitment of checkout operators to the over 50s because it believes older workers are more reliable than younger workers. It cites the potential legitimate aim given by the government of recruiting older people. However, even if this were to be accepted, it would not be proportionate to apply a blanket age requirement whereby the under 50s are simply discounted with no assessment of their individual merits. Can an employer specify experience requirements for a job? Employers frequently require job applicants to have a minimum or maximum number of years of experience. This is indirectly discriminatory and again subject to the test of objective justification. Certainly after the first few years, judging competencies by reference to years of experience is not reliable. This is because a great deal of experience is gained during the first few years of employment and then it tends to level out so, for example, there is probably not much difference between someone with ten years experience and someone with twelve years experience. Likewise, an employer who does not want to recruit an over-qualified candidate is at risk of a finding of indirect discrimination as older workers are more likely than younger workers to have too much experience. Clearly, it is legitimate for an employer to appoint someone who is suitable to fill a vacancy. However, instead of specifying years of experience (which is time-based), employers should specify this by reference to the type, breadth or level of experience needed for the particular job and the skills and competencies required. This is where the person specification (which gives the skills, knowledge and experience required to carry out the job duties) can be used to assist in the drafting of an advertisement. Of course, what applicants have done in the past is closely linked to the question of what skills and competencies they can demonstrate, so experience will still be relevant. Ten top tips on drafting advertisements, job descriptions, person specifications and other recruitment literature. ten top tips 1. Remove any maximum or minimum age limits, unless they can be objectively justified (highly unlikely). 2. Avoid using words such as young, dynamic, lively, energetic, junior, youthful, mature, senior, experienced or accomplished. 3. Think carefully about requiring that employees have a minimum number of years of experience as you will need to objectively justify this type of requirement for a particular post - instead focus on the type or breadth of experience needed for the job. 4. Do not set a maximum number of years of experience if this really relates to a particular maximum salary level, instead provide the salary band. If it relates to a concern that an overqualified candidate might lack interest and motivation or want more money or seek a new job within a short period, that can be determined on a case-by-case basis at interview. 5. Do not describe a position as an ideal first job or suitable for a school leaver it implies a young candidate with little or no experience will be preferred. 16

3 ten top tips 6. Do not require applicants to be recent graduates assess all graduate applications on their merits according to their skills and competencies and always ensure that being a graduate is really a necessary requirement for the position in the first place. For example, will relevant practical experience or holding professional qualifications be sufficient? If necessary, state that the position requires a graduate or equivalent. 7. Do not require applicants to have a recent or particular qualification older candidates may not have qualifications that have only recently come into existence, such as GCSEs or NVQs. Instead, accept equivalent or similar level qualifications or skills levels. 8. Do not use photographs, pictures or imagery in your recruitment literature which indicate an age bias and always include a statement that you are an equal opportunities employer. 9. Take care in specifying that applicants must be flexible or prepared to work late or long hours Members of a particular age group may be more likely to have childcare or other family commitments and they could claim this requirement indirectly discriminates against them. Of course, there are many jobs in which flexibility and the ability to work late are genuine requirements and so in these circumstances it may be possible to objectively justify them. 10. Consider excluding job applicants who have already attained age 65 or your normal retirement age if higher, or are within six months of this age at the date of their job application. Ask the job applicant to confirm whether he or she is within six months of your normal retirement age or 65. What about where the employer advertises? The way in which potential job applicants are targeted can be discriminatory, e.g. only targeting recent graduates at university recruitment fairs or advertising only in publications predominantly read by persons of a particular age group. Vacancies can be advertised in many different ways, including national and local newspapers, magazines, trade publications, the Internet, job centres, through recruitment agencies and through university or trade fairs. Employers should adopt a broad approach to advertising and should avoid focusing their recruitment exclusively on one source. Ensure that your various methods of publication of job advertisements make the vacancy available to applicants of all age groups. If you do use university milk rounds for recruitment, ensure you also permit applications from other sources, such as using specialist recruitment agencies. Make the milk round just one component of your recruitment strategy. Similarly, advertising only via the Internet is likely to discriminate against older candidates who, generally speaking, are less likely than younger people to surf the net, so consider other recruitment methods as well. 17

4 Beware of recruiting solely by word of mouth. If the workplace is dominated by, say, younger workers, the vacancy may never come to the attention of older people, thus perpetuating the age imbalance. Does the employer need to amend the application form? Requiring dates of birth or age is not age discriminatory in itself but it could be used in making age discriminatory decisions. It is therefore recommended that questions about age and date of birth are banished from the main application form, and that instead this information is collected through a separate diversity monitoring form that those taking recruitment decisions should not see. Applicants should then be given adequate assurances that the information will be kept confidential, that access to it will be restricted and that it will only be used for the effective implementation of equal opportunities policies. In addition, application forms should also avoid requesting information from which an applicant s age can be easily ascertained, such as dates of education or qualifications, unless this information is necessary. However, employers should not amend the application form to the extent that it becomes meaningless. It is quite legitimate that an employer will want to see gaps in employment history or the frequency with which an applicant has changed jobs in the past or how much experience an applicant has. If the information is necessary, the employer is entitled to ask to see it. If an employer can show a logical and necessary reason why they asked for age-related information on an application form and can show that the recruitment process was conducted in an appropriate manner, they are unlikely to attract age discrimination liability. What does an employer need to worry about at the shortlisting, interview and selection stage? Those responsible for recruitment need to receive diversity training so that age discrimination is not allowed to creep into their decision-making processes. Employers should identify the skills and competencies necessary for the vacant position and record these in writing using, for example, a person specification. After shortlisting, it is preferable for someone who has not been involved in the process to check that no bias deliberate or unintentional has influenced the recruiter s decision. It s always best practice for employers to interview using a panel of at least two interviewers, ideally with a diverse age background. The interviewers should then focus on assessing how the candidate meets the job description and person specification and they should record their assessments against the written agreed selection criteria. Managers may find it helpful to have a checklist of key questions to ask and key questions to avoid asking. They should preferably ask all applicants the same questions where possible and only deviate where they have particular concerns about individual candidates that need to be addressed. Keep records of shortlisting decisions and interview notes for at least twelve months after completion of the recruitment exercise. 18

5 Avoid asking interview questions such as: how would you feel about managing older/ younger people?, how do you feel about taking instructions from younger people, do you feel you are too young for a post of this responsibility? or why are you not looking for a post with more responsibility? Is it best practice for an employer to monitor recruitment exercises? Yes. Employers should monitor their recruitment programmes, i.e. the age profile of job applicants as well as those who are interviewed and appointed, to ensure the recruitment process is free of age discrimination and bias. Whilst there is no legal obligation to conduct monitoring, without it an employer is unlikely to know whether their equal opportunities policy is working effectively. Employers should, however, be aware that data collated through monitoring will have to be made available to claimants bringing age discrimination claims and inferences may be drawn if the data is unfavourable. Any data collected should normally be anonymous. If it identifies individuals, it must be processed in accordance with the Data Protection Act By adopting consistent, transparent, well-documented and non-discriminatory recruitment practices, you will be in a strong position to defend an employment tribunal claim arising out of the recruitment process. Key points Review job adverts, job descriptions, person specifications and other recruitment literature, particularly where you ask for specific qualifications and years of experience or you specify age limits, and make sure that any requirements can be objectively justified. Record any justification in writing, together with supporting evidence. Consider whether the use of certain words in job adverts is appropriate e.g. young, mature, etc. Review recruitment methods to make sure they will reach all age groups. Update applications forms, making them age neutral where possible. Provide training for those involved in recruitment so they avoid ageist assumptions and agerelated questions or comments. Keep interview notes and other relevant recruitment documentation for at least twelve months. Monitor the age groups of job applicants and new recruits to see whether there are any issues which need to be addressed. If there are no problems, this information will provide you with good evidence if someone does bring a claim! 19

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