It's common knowledge that some employers try to recruit in
their own image (whether lawful or not). Job advertisements and
person specifications can be used to pinpoint particular
demographics, and in particular, certain age groups. Advertising
for a candidate who is active, energetic and computer-savvy?
Chances are, you're looking to hire someone young.
An employer's decision to say in clear terms that they want
someone with "youthful enthusiasm" (McCoy v James
McGregor & Sons Limited 00237/07IT) or a "younger,
entrepreneurial profile" (Beck v Canadian Imperial Bank of
Commerce ET/2328832/08) will at the least raise a presumption that
the employer has directly discriminated on the basis of age.
A less obvious way in which age discrimination can creep into
recruitment is via the imposition of experience requirements.
Asking for someone with at least 10 years' experience will
probably exclude candidates in their 20s. Equally, saying that
candidates should have 5 years' experience or less will make it
more difficult for older candidates to comply. Such requirements
are likely to be indirectly discriminatory on age grounds unless
they are objectively justified.
An example of a non-discriminatory experience requirement can be
found in Jones Care UK Clinical Services Ltd ET/3302973/2015. Mr
Jones (who was 51) had applied for the role of marketing services
executive, which reported into the marketing services manager. The
person specification asked for at least 2 years' experience and
a relevant degree. The company decided that Mr Jones would not be
the best candidate and offered the job to someone else (who was
aged 29). Mr Jones claimed he had been discriminated against on
grounds of his age. The company denied this, stating that his age
played no part in the selection process and that his responses in
interview suggested that his skills were beyond what was needed.
His expectations were also higher than the constraints of the role
The employment tribunal dismissed the claim, finding that Mr
Jones' "previous senior roles, high-level qualifications
and extensive experience might unbalance the marketing team and
undermine other team members whose qualifications and experience
were of a much lesser order". It also found that there was a
risk of Mr Jones becoming frustrated in the role, particularly
given the lack of scope for career progression.
On the other hand, in Rainbow v Milton Keynes Council
1200104/2007, a role which specified that it "would suit
candidates in the first five years of their career" was
discriminatory. The tribunal had no problem finding that the
requirement put older applicants at a particular disadvantage,
given that applicants in their 60s (Ms Rainbow included) were more
likely to have lots of experience. The employer's reason for
wanting someone younger – which was that they were cheaper to
employ – was not sufficient justification.
Essentially, the safer course for employers is to only ask for
what you need from a candidate. Where a quality (or particular
level of experience) is necessary and relevant to whether a
candidate can do the job properly, you are entitled to ask for it.
However, if you find yourself writing the words like
"younger", "older" or "youthful" in
your job advertisement, the best advice will always be...
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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