Law guide: Employment

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Age discrimination

Age discrimination

Contents

The introduction of legislation outlawing age discrimination under the Employment Equality (Age) Regulations (Northern Ireland) 2006 and the Equality Act 2010 (which includes the provisions that were contained in the Employment Equality (Age) Regulations 2006), has a particular impact on recruitment.

What is age discrimination?

Age discrimination can be explained as occurring when someone treats a person less favourably because of that person's age, and uses this as a basis for prejudice against and unfair treatment of that person.

Age discrimination in employment can:

  • Affect anybody regardless of how old they are
  • Reduce employment prospects for older people, younger people and parents returning to work after a period of full-time childcare
  • Favour people in the age group 25 to 35
  • Prevent the full consideration of abilities, potential and experience of employees

Recruitment and age discrimination

Job descriptions and advertisements

Particular care should be taken when creating a job description and advertisement. Some organisations are now specifying the experience required for the role in detail, such as 'a need to demonstrate experience of managing a team of 5+ employees' (rather than '5 years experience in managing a team of employees'), to avoid breaching age discrimination legislation whilst still targeting the desired type of candidate. Phrases such as 'requires youthful enthusiasm' should be avoided – instead, emphasis should be placed on the requirement for an enthusiastic applicant. Therefore, careful drafting is essential.

Application forms and interviews

As a result of the legislation it is generally good practice not to ask an applicant about:

  • Their age
  • Dates of any qualifications, previous employment or training
  • Any other information which may directly or indirectly relate to their age

Remember that age discrimination legislation applies to young workers/applicants as well as older members of the workforce.

If you still believe that this information is necessary then you should consider asking the candidate for a copy of his/her CV. However, even if the applicant voluntarily provides age-related information (such as stating it in his/her CV), this should not be used as a basis of any decision and should effectively be ignored, unless there is a lawful reason for discriminating on the grounds of an applicant's age (see below).

Some regulators (such as the Financial Conduct Authority) may require employers to provide age-related information, and if this affects you, we suggest that you send the applicant two application forms, one of which should include the information requested by the regulator. This application form should be used for the regulator's purposes only.

Interviewers and those concerned with selection must not be subjective on the basis of physical characteristics and unfounded assumptions, and must ensure their decisions are based on objective criteria, relevant to the job and merit.

Removal of the default retirement age

Employers are not legally allowed to reject, on the basis of age, applicants who will be 65 or older within 6 months of applying for the job.

Lawful discrimination

Direct age discrimination is allowed in circumstances where it is required, in order to comply with another law or a genuine occupational requirement of the role. For example, a dramatic performance or other form of entertainment that requires a person from a particular age group for authenticity.

Employment agencies

If you are using an employment agency then you should ensure that they are not breaching any discrimination legislation as you will be held liable for their actions if they discriminate against an applicant.