Age discrimination in recruitment: time to nip it in the bud
The furlough scheme helped to reduce the effect of the pandemic on employment. However, the end of the furlough scheme has led to concern that there will be a relatively high level of unemployment among older workers in comparison to younger workers as there was a higher proportion of older workers on furlough towards the end of the scheme (out of 800,000, around 500,000 were over 50). It is therefore likely that redundancies made when the scheme came to an end on 30 September 2021 affected more older workers.
It is reported that there are plenty of job vacancies and there are even labour shortages in certain industries. However, there is concern that age discrimination in recruitment could prevent older workers from securing new employment in the coming months.
Whilst age discrimination might not be in the headlines as much as other types of discrimination, it should not be overlooked as it could prevent employers from accessing workers with the talent and skills needed in their businesses possibly though not exclusively gained through experience or “time on the job”.
The Centre for Ageing Better has identified that there is a failure amongst employers to recognise age bias in their recruitment process and this means that no measures are taken to tackle it. As a result, age discrimination may creep into the recruitment process through the unconscious age bias of the individuals involved in recruitment.
FAQs
We have answered FAQs on age discrimination to help you consider this issue further with a focus on the recruitment process.
Is age discrimination illegal in the UK?
Yes. Age is subject to the same protection from discrimination as race, sex, disability, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity and religion or belief. Age discrimination can affect any age, it is not limited to older people or younger people.
Employers should take care not to discriminate on the basis of a worker’s age or they may face a claim in the Employment Tribunal. The Centre for Ageing Better highlights that age discrimination claims increased more than any other type of claim between 2019 and 2021.
Compensation for successful discrimination claims is uncapped where loss of earnings may span several years possibly up to retirement in addition to an award for injury to feelings so the price can be high even for inadvertent age discrimination. In a recent case, a claimant was awarded around £110,000 for financial losses and compensation for injury to feelings stemming from direct age discrimination. In addition, Employment Tribunal judgments are public and a finding of discrimination can create negative publicity for an employer.
Are there different types of age discrimination?
Yes. Age discrimination can be direct where a worker is treated less favourably than another worker because of their age, for example if a worker is selected for redundancy over another because they are older. Depending on the circumstances, employers who impose a compulsory retirement age (which they are able to do) may also be found to have directly discriminated on the basis of age where the compulsory retirement age cannot be objectively justified.
Age discrimination can also be indirect where certain practices or policies are applied to everyone but put a particular age group at a disadvantage. In a recent case, it was decided that the employer school’s requirement for all teaching staff to have particular qualifications put those in the claimant’s age bracket (60 to 65) at a particular disadvantage as someone of that age has less time to complete the qualification and to then receive the benefits of it at retirement. The claimant in this case was awarded £14,000 for injury to feelings.
It is therefore equally important not to single people out and treat them differently because of their age and to think carefully before applying blanket provisions to all staff as both may amount to discrimination.
There are also other types of conduct to be aware of which are prohibited by UK equality law, including age harassment where an individual is subjected to unwanted behaviour related to their age which creates an intimidating and degrading environment for them and age victimisation where an individual experiences a backlash at work as a result of raising a complaint of discrimination. A Tribunal found that a 57 year old employee had been harassed and directly discriminated against by her manager who joked that the claimant had Alzheimer’s or that she was having a “senior moment” when she forgot something. This is a reminder to employers that seemingly harmless workplace banter can be unlawful behaviour for which the employer may be held liable.
What is age discrimination in recruitment?
Protection from age discrimination applies to those in employment as well as those going through the recruitment process. Employers cannot, for example, offer someone less favourable terms of employment or not offer them employment at all because of their age.
Further, protection from age discrimination extends to job adverts which may still be unlawful if they are discriminatory. For example, an advert which requires a certain amount of experience may indirectly discriminate against younger applicants.
Tips for avoiding age discrimination in recruitment
- Take care with the wording and appearance of job adverts – avoid wording and pictures that suggests the job advert is directed at a particular age group.
- Advertise roles on a range of platforms – e.g. not just on social media.
- Highlight the benefits of a role, including those which might attract older workers – such as pension and flexible working.
- Take a look at your recruitment process – change any part of the process that leaves room for age bias and use a standard process with set questions and scoring criteria (ensure they do not inadvertently identify older workers).
- Ensure that age is included in your inclusion and diversity policies and provide regular, meaningful training on these policies – in particular, ensure that those conducting interviews are aware of your age-inclusive stance.
Contact our employment solicitors
If you would like to learn more about how we can support your business, please contact a member of our Employment & HR team.
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