UK: Age discrimination: Recruitment

Although there will be little specific age discrimination legislation directly affecting the recruitment of new employees, in practice there will need to be some fundamental changes, at least in culture and perception. It will no longer be lawful to discriminate against applicants because they are perceived to be "too old" or "too young" for the job in question.

The only express exception under the new regulations affecting recruitment is an exception for recruitment above (or within six months of) the employer’s normal retirement age (which will need to be objectively justified if it is below the age of 65). Accordingly employers will not have to interview or otherwise assess applications from people who are above, or within six months of, their employer's normal retirement age. (Please click here to view a PDF version of our note on objective justification in a new window).

There are no other specific exceptions under the new regulations applicable to recruitment. However, there are, of course, the general exceptions click here to view a PDF version of our note on general exceptions in a new window), which could apply - for example a genuine occupational requirement (click here to view a PDF version of our note on genuine occupational requirement in a new window), may make age discrimination lawful. Alternatively, it may be appropriate to take positive action and therefore lawfully discriminate on the grounds of age. However, unless the exceptions apply, any age discrimination elements in a recruitment and selection process will only be lawful if they satisfy the general test of objective justification. Depending on the circumstances, it may be possible to justify upper age limits if, for example, they are necessary because of the training requirements of the job in question or the need for a reasonable period of employment before retirement for "payback". (Please click here to view a PDF version of our note on objective justification in a new window).

The DTI has made it clear that decisions about recruitment should be based on the skills required for the job, rather than the age of the applicant. Employers will need to examine their recruitment policies carefully. For example are birth dates/ ages really necessary on application forms? Although seeking this information is not directly and immediately age discriminatory (and indeed is arguably necessary to establish whether applicants are within six months of retirement age), this information could be used to make age discriminatory decisions. Prudent practice suggests that such information is moved to a diversity form which is not seen by the recruiter and which is independent from the recruitment process.

Unless a certain period of experience is actually needed for the job in question it will not be objectively justified to ask for it. Young people will be less likely to fulfil this requirement than older applicants. The requirement for a certain qualification should also b0e examined to ensure that it can be objectively justified. An older person may be discriminated against if the qualification has only been introduced recently.

A key issue for many employers is whether they should change their graduate recruitment scheme. Certainly employers wishing to recruit graduates may no longer be able to justify setting a maximum age for entry. Students can be of any age and unless there are objectively justified reasons for excluding older students such practices will be unlawful. It remains to be seen whether well-developed generic graduate training schemes (generally only suitable for new graduates who have little practical work experience) can objectively justify recruiting new, and therefore, younger, graduates.

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This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 04/04/2006.