UK: An Age of Change – Age Discrimination Liabilities For Recruitment Agencies

Last Updated: 6 October 2006
Article by Daniel Naftalin

The 1st October 2006 saw the introduction of what could be the most influential piece of legislation in 30 years. The Employment Equality (Age) Regulations 2006 ('the Age Regulations') provide protection to employees, applicants, contract and agency workers, partners and various other parties against discrimination, harassment and victimisation on the basis of actual or apparent age. The Age Regulations afford similar protection to that provided by the other discrimination laws, including uncapped financial damages.

New Themes

There are a number of new themes running through the Age Regulations. We highlight three below as perhaps the most important for recruitment agencies to be aware of, before going on to describe how you can prepare for the introduction of these new rules.

Objective Justification

One of the new themes running through the Age Regulations is the ability to 'objectively justify' discrimination on the basis of age. This allows employers to defend claims of age discrimination on the basis that the discrimination was a proportionate method of achieving a legitimate business purpose. How the Employment Tribunals in practice will interpret this remains to be seen, but what is certain is that a relatively high standard of "objective justification" will be required.


The Age Regulations also provide for a complicated set of rules regarding retirement, whereby it will be discriminatory to retire any employee before the age of 65 if this cannot be objectively justified. It will also be an unfair dismissal if an employee is dismissed at or above the age of 65 without a proscribed procedure having been followed. The procedure will require an employee to be given advanced notification of the intention to retire them, rights to request not to be retired, rights to meet and to appeal against any decision. What is notable from an employer's perspective is that provided it has a normal retirement age of 65 or above, and the fixed procedure is followed, it will be possible to avoid age discrimination and unfair dismissal claims, no matter how unreasonable the reasons for retiring that employee. Advanced planning and organisation will be key.

New Rules for Recruitment Agencies

All employers, including recruitment agencies, will be covered by the Age Regulations. However, there are additional specific rules relating to "employment agencies" that are likely to apply to recruitment agencies. These make it unlawful for agencies to discriminate against jobseekers on the grounds of age:

(a) in the terms on which the agency offers to provide any of its services;

(b) by refusing or deliberately not providing any of its services; or

(c) in the way the agency provides any of its services.

This gives jobseekers a stand-alone right to bring a claim against an agency where they can show the agency has discriminated against them – for example, by turning them away or by not including them in their shortlisting of candidates for employers on the grounds of age.

The Age Regulations create a double jeopardy for recruitment agencies. Not only can agencies be the subject of claims on their own account, they will also be held liable for damages if they discriminate on the instructions of a client. For example, if a secretarial recruitment company was asked by a client to provide an older secretary for the purposes of providing gravitas to a secretarial pool made up of younger secretaries, this would almost certainly be considered discriminatory. Equally, a request for a younger secretary who might be more malleable to the ways of an organisation or who might suit the image of the particular client would also, almost certainly, be discriminatory.

The only way in which an agency can avoid liability where it has acted on a client’s discriminatory instructions is to show that (a) it acted in reliance on a statement made by its client to the effect that the client was lawfully entitled to refuse employment on an ostensibly discriminatory basis; and (b) it was reasonable for the agency to rely on that statement. The Employment Tribunal will decide what is 'reasonable' in these circumstances. It is likely to apply a relatively stringent test which may involve agencies having to test the reasons given by a client – something that may be difficult in practice. It is also worth noting that this defence only applies to offers of employment or engagement, not the terms that are offered.

It is likely that recruitment agencies will also experience additional interference from their clients in the way they operate their businesses as clients will now be strictly liable for any acts of discrimination by the agencies that they use. A practical consequence of this is that they are likely to seek to shift some of the burden for compliance onto the agency. This is likely to manifest itself in two obvious ways:

(1) they will seek to look at the policies that agencies have in force to prevent discrimination, i.e. equal opportunities, retirement, and redundancy policies.

(2) they may now seek contractual provisions in their terms of business with agencies that will prohibit absolutely any discrimination by the agency in the selection of candidates. The purpose of this will be to enable clients to seek recompense from their recruitment agencies in the event that a candidate sues them.

How to prepare for the new Age Discrimination Regulations

In many businesses, age discrimination is commonplace and therefore, the biggest hurdle may be to affect a culture change whereby age discrimination becomes unacceptable. This cannot happen overnight but by making some of the changes below, a business can take practical steps to limit short-term risk, and facilitate a change in new culture over time.

Businesses should, preferably with legal advice, look at the following areas:

Recruitment Checklist

  • Advertisements - Agencies should check the recruitment literature that they use for themselves and for clients. Check the terms of job advertisements, job descriptions and person specifications, specifically for language that could be construed as age-related. For example, avoid specifying a minimum or maximum length of experience where this cannot be argued as strictly necessary.
  • Pictures - Consider whether any pictures/images used in your literature create an image that would exclude or alienate certain age groups.
  • Client/Agency Instructions - Check written communications to ensure that they do not convey discriminatory instructions. Agencies who receive instructions from a client employer that could be discriminatory should obtain the client’s justification for the instruction in writing and follow up with further questions if the explanation is not compelling.
  • Qualifications - Check if qualifications specified in job adverts or person specifications disadvantage any particular age group and, if so, consider alternative ways of asking for experience.
  • Application forms - Requests for dates of birth or age should be removed from the application form and included in separate equality/diversity monitoring forms. Requesting details of education or employment may lead to assumptions based on age so their necessity should be considered.
  • Photos - Does the business or agency require photos with completed applications forms? If so, consider what purpose these serve and whether their use is objectively justifiable.
  • Interviews - Is there any written guidance for interviewers or interview panels? If so, check that guidance in relation to age-related issues. If not, consider preparing guidance and giving training to ensure age discrimination compliance.

Contracts of Employment and Policies

  • Retirement clauses – Check whether there is a contractual normal retirement age of 65 and if not, think about changing it to 65.
  • Benefits – Check whether qualification for benefits is based on length of service. If so, see if the business can take advantage of the various exemptions that might apply.
  • Bonus schemes and share schemes - Check whether any scheme differentiates between "good leavers" and "bad leavers" and whether retirement age is used as a "good leaver" criterion. This is likely to be discriminatory.
  • Retirement policy – Any existing retirement policy will need updating to include the new retirement obligations on employers.
  • Redundancy policy – Any reference to age or length of service as a criteria for selection for redundancy should generally be avoided.
  • Equal opportunities and diversity policies – these policies, including any anti-harassment or bullying policy, must be amended to prohibit discrimination, harassment or bullying on the grounds of age.
  • Training - employers should give up-to-date training to managers on equal opportunities with a specific focus on age related issues.

An edited version of this article first appeared in People Management online in September 2006.

This article is only intended as a general statement and no action should be taken in reliance on it without specific legal advice.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.