Act of maturity
From October this year, age discrimination should be outlawed. What do employers and interim providers consultancies need to know about the forthcoming legislation?
Date:
06 March 2006
Source:
Guide to recruitment consultancies
Page:
22
This recruitment advert appeared recently in a London newspaper. It's not an unusual example. But when the new regulations against age discrimination come into force this October, it will be illegal to advertise a job with a specific age restriction like this, unless the employer can justify the need for one.
Employers will also be guilty of ageism if candidates can prove they were rejected because of their age, even though no restrictions were stated during the recruitment process. Australia already has anti-ageism laws and, in a case there last year, low-cost airline Virgin Blue was found to have discriminated when recruiting cabin crews. As part of its recruitment procedure, candidates were asked to sing and dance. The company claimed it wasn't taking age into account but seeking "Virgin flair". An analysis revealed that, although its applicant shortlists included older age groups, only one candidate aged over 35 had been successful, from which the court was able to infer discrimination.
Recruitment agencies could find themselves responding to age discrimination claims alongside their clients when the regulations come into force, because both can be held liable. Jenni McCann, group manager of HR recruitment specialist Frazer Jones, says that while her clients are too diversity-aware to restrict the age of applicants, some firms still have conversations with recruiters about the age of candidates they want to recruit. "In this case it's the agency's responsibility to push that back on them and ask about the actual experience they are seeking," she says.
Mike Butler, a former personnel manager and now a recruitment consultant at Capita HR, says he'd be surprised if he had to educate his clients – the HR community – about age diversity. He rarely gets asked for candidates from a specific age group, but does have conversations about "balanced teams".
"If anybody did ask for a young candidate, I'd pick them up on it," Butler says. "I'd try to tell them what they'd be missing out on by ignoring older candidates." But he is less sure about recruitment firms' knowledge of diversity matters in general, and thinks that many consultants won't be familiar with the risks of non-compliance on age.
Employees in customer-facing roles are most at risk of ageism, according to a recent survey of HR directors and managers by legal publisher Croner. But some employers in the service sector are trying to buck the trend. Northern Rock's conversion from building society to bank in 1997 led it to rely more on phone contact with customers. Having attracted mostly younger candidates in the past, it wanted a workforce that more closely resembled its customer base.
Northern Rock's personnel director, Lynne Griffin, says diversity has had a high profile in the organisation for two decades. To bring about the changes required to achieve a wider spread of ages, it set up a working party – led by a personnel manager in her 50s – that asked older employees what barriers they faced when joining the firm. The biggest blocks were a fear of new IT and a loss of confidence caused by lengthy breaks from work. The bank responded by providing recruits with "buddies" for the first six months of their employment.
Northern Rock is also careful about the wording of job ads. "We emphasise that it is about getting the right person for the role," Griffin says. "We make it clear that we're a fast-moving organisation and want people with all kinds of life experiences. We say we’re flexible as well, because a lot of older people don't want to work five days a week."
Ikea also offers flexible working options. Like Northern Rock, the furniture retailer is an Age Positive "employer champion" of good practice. Gay Gwinnutt, HR manager at its Cardiff store, admits that wording job adverts can be difficult.
"Our ads state: 'Whether you're looking for a new job, looking to work while at college, returning to work after a break or want to subsidise your pension…' to show that we're looking for people across the whole range," she says.
The store uses the Age Positive logo on all adverts. It also holds recruitment open days and sends letters to over-50s registered as unemployed with their local JobCentre, stating what work, hours and training are available and what skills the firm is seeking.
Ikea has been age-profiling its workforce for some time, using its application form to collect age data on a tear-off portion that interviewers don't see. It also trains line managers in how to avoid discrimination in their recruitment decisions.
"We make it clear that it's about matching the person to the vacancy," Gwinnutt says. "Age shouldn't come into the equation unless there's a legal necessity to check for it."
McCann at Frazer Jones also stresses the importance of selecting candidates according to the needs of the role. "We send our clients candidates that fit the brief," she says. "We'd look at what they're looking for – job criteria, sector background, educational requirements, the level the job's at in the organisation, how many direct reports they would have – then send them candidates we thought were appropriate."
A legitimate reason for setting an age limit for a particular job – 18 for a bar worker, for instance – can be used as a defence against a discrimination claim. But lawyers think it will be hard for employers to "objectively justify" ageism in recruitment. They will have to show their actions are "appropriate and necessary" and a "proportionate means of achieving a legitimate aim". This means persuading a tribunal that the importance of the goal they are trying to achieve outweighs the discriminatory effect of their actions. Cost on its own is unlikely to be enough.
James Davies, employment partner at law firm Lewis Silkin, thinks it's "far from clear whether profitability can be a legitimate reason for imposing an age limit. It will be difficult for employers to say their need for someone of a particular age outweighs the discriminatory impact. No one would suggest that a firm that thought it would sell more products if it had only white salespeople could justify discriminating on that basis."
Recruitment disputes and cases involving the dismissal of older managers will give rise to the most claims when the laws come in, according to Davies, because there is so much discrimination in these areas at the moment. "A lot of the criteria lazy employers use – for instance, asking for 'recent graduates' – have an impact on older workers," he says. "What they really want is somebody whose skills are up to date and they're using proximity to graduation as a rough measure for saying this. Such phrases can be challenged."
Davies thinks that indirect discrimination – where apparently age-neutral criteria disadvantage people from a particular age group – will be the trickiest area to handle. He points to the use of the word "experience" in adverts as a substitute for "skills". He thinks employers could get away with asking for two years' experience because the discriminatory impact of this would affect fewer people. It would be easier to justify and show a correlation between the level of experience and the skills required.
Asking for 10 years' experience would be more difficult to defend. "The discriminatory impact would be greater and it would be much harder to show a correlation. Someone with six or seven years' experience would probably be able to do the job just as well," Davies says. "I'm not saying employers should immediately remove experience requirements from job specifications, but asking for longer periods will be risky."
Recruitment practices that are "inconsistent, not transparent and inadequately documented are likely to lead to inferences of discrimination, whether or not discrimination took place", he warns. "Employers want to put themselves in the best position for those inferences not to be drawn."
How the anti-ageism law will work
The Employment Equality (Age) Regulations 2006, implementing the EU equal treatment directive, will outlaw age discrimination in employment and vocational training in the UK. The final version of the regulations were published on 9 March and, subject to parliamentary approval (usually a formality at this stage), will come into force on 1 October.
The regulations will apply to all employees (on both permanent and fixed-term contracts); job applicants; office holders (such as company directors); partners; secondees; the self-employed; and contract workers. All employers must comply – there are no exemptions for small firms.
Employees are protected against direct and indirect discrimination, harassment and victimisation on the grounds of age. Employers can be held liable for any discriminatory acts by employees.
Both recruitment agencies and potential employers are obliged not to discriminate against jobseekers. Candidates can claim against either or both. A tribunal would consider the liability of each party and determine the level of award, if any, to make against them.
Claims must usually be brought within three months. Claimants will be able to request that their employer fills in a questionnaire. Once a claimant has established that discrimination could have taken place, the burden of proof rests with the employer to justify it or prove that it hasn't occurred.
Compensation will be uncapped and will cover financial loss and injury to feelings. Tribunals can also award aggravated damages against employers.
Compliance checklist
Review your recruitment procedures. Are they consistent across the organisation and easy to understand and apply? Are the results well documented? A coherent paper trail could provide vital evidence at a tribunal hearing.
Devise a standard form for job specifications and ask managers to specify the skills that applicants will need. Check that these match what the job actually requires.
Check each recruitment criterion. Does any apparently age-neutral requirement actually disadvantage people in a particular age range? What skills are the recruiter really seeking?
Review the wording of your firm's job adverts. Could this be discriminatory by suggesting that successful applicants are likely to be "mature" or "youthful", for instance? Use age-neutral language instead.
Consider where the job adverts are placed. Are the media you have chosen for them excluding certain ages of job applicants? Is the reason for this justifiable?
Ask applicants to include their age in a (voluntary) diversity monitoring form and keep it separate from application forms to avoid bias in job offers.
Train decision-makers in diversity so that their judgments on candidates' suitability for roles are based solely on objective, job-relevant criteria. Ensure that recruiters provide a non-discriminatory reason for each rejection in their records (this will help to rebut all forms of discrimination claims).
Keep a record of the age profile of your recruits. If successful candidates tend to fall into certain age groups, investigate the reasons and ensure that any discrimination can be justified.
Web resources
• www.cipd.co.uk – Age and Employment factsheet, January 2006. See also the "Law on tour" workshops this spring on applying the new age discrimination law.
• www.peoplemanagement.co.uk – The Law on Age Discrimination quick guide. See also archived PM articles.
• www.agepositive.gov.uk – recruitment good practice guide prepared by the Department for Work and Pensions. See also Employer Champion case studies and Top Tips on Recruitment, prepared by the Age Partnership Group.
• www.rec.uk.com – The Recruitment and Employment Confederation, the professional association for recruitment consultancies, launched a "diversity pledge" in December (this includes a diversity diagnostic available online), indicating commitment by agencies to best practice in widening the candidate pool. A two-year diversity audit for agencies is to be launched later this year.
• www.efa.org.uk – Employers Forum on Age. See especially case law from Ireland that banned age discrimination in 1998.
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