Age discrimination in the workplace can arise in various different situations, and recruitment is one area that can often cause issues. This article discusses age discrimination during recruitment and gives examples of age discrimination during the recruitment process.

To avoid age discrimination, steps should be taken across the recruitment process: from writing the recruitment documents, to advertising and interviewing, and then ultimately to selecting the right candidate.

Age discrimination during the recruitment process: application forms, experience and qualifications

Job adverts, application forms, person specifications and job descriptions should be written and presented in an age-neutral way. For example, including photos of young people in recruitment material could give rise to an inference that applications from older applicants are not welcome. Language should be used careful and special attention made to avoid any words that could be seen as being code: for example, “gravitas” could relate to older workers whilst “energetic” could relate to younger workers.

Experience

When it comes to experience, requirements should be described in terms of the type of experience or the depth of experience, rather than a simple number of years of experience. This is because if, for example, a requirement of 10 years of experience is imposed, it would rule out anyone aged in their 20s from applying.

Qualifications

Applicants should only be asked for qualifications that are necessary to the role. For example, looking for “graduates” might not be necessary for a role as a cleaner and might discriminate against older workers.

Exactly this issue arose in the Supreme Court case of Homer v Chief Constable of West Yorkshire. Here the Supreme Court said that a requirement for people to have a law degree to get to the top level of pay was indirect discrimination. Different requirements could have instead been applied to all staff and the degree requirement was not necessary (there was also a comment that making special adjustments or granting privileges just to employees in a particular age group, such as older workers, would risk indirectly discriminating against those outside of the group).

A similar example of age discrimination during recruitment is Games v University of Kent. In this case, a renowned architectural write and historian had been encouraged to apply for a role as lecturer. All candidates were required to hold a PhD and, as Mr Games did not have one, he was automatically rejected at the shortlisting stage. Mr Games argued that people of his age (56 or more) were less likely to have a PhD and so this policy indirectly discriminated against those in his age group.

Age discrimination in interviews: how to avoid bias

The best way to avoid age discrimination during interviews is prevention. Ensure all interviewers have had adequate diversity training that includes conscious and unconscious bias.

Unscripted interviews

To ensure a fair, even and unbiased interview process, it’s a good idea to ask the same questions to all candidates. Preparing the questions in advance ensures interviewers will be able to obtain the information they need in a non-discriminatory way. The case of James v Coedffranc Community Council is a big warning against the use of unscripted interviews.

In this case, Coedffranc Community Council was recruiting for a parking attendant in order to replace a 67 year old who had recently left. Mr James (also 67) applied for the role. During his interview, most of the interview panellists asked questions straight from a prepared script.

However, one interviewer, a Councillor Annette Wingrave, went off script and began making statements such as “I’ve just noticed how old you are” and asking questions such as “How’s your health anyway?”. She also wrote down the ages of applicants on her copy of their application forms.

An Employment Tribunal found that Councillor Wingrave’s action were enough to support a case of direct age discrimination. As Coedffranc Community Council were unable to show that Mr James’s age was not a reason why he did not get the position, the Employment Tribunal ruled in his favour.

Scoring in interviews

Preparing interview questions and interview scoring criteria in advance (and sticking to them) is a good way of avoiding age bias from creeping into the process. But that is only the case where such questions and scoring have been prepared properly.

The case of Frost v David Harber Limited is an example of age being used as a measure to score against.

In this case, an interviewer was using a proforma scoring sheet with a list of attributes. The interviewer scored the interviewees out of ten for each attribute and one attribute was “age”.

Mr Frost was asked how old he was and he replied by saying “has the same legal effect of asking how gay or disabled I am”. He did not answer and so was given six out of ten under the “age” criterion. He was ultimately rejected from the role and although the company tried to argue that “age” was relevant as it related to ability to carry a 30kg sundial, Mr Frost won a claim of direct age discrimination.

Age discrimination and the application of age limits

Any age limit – whether it be a maximum or a minimum age limit – is, on the face of it, direct age discrimination. Age limits amount to less favourable treatment because of age as they stop those who do not meet the criteria from even being considered.

This issue has arisen often, particularly in cases before the ECJ.

For example, in Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias, an age limit of 35 years old for new Police Officer recruits was considered. The ECJ held that, although it was direct age discrimination, it was justified. The role in question required a high degree of operational activities and substantial evidence had been obtained showing that those aged 40+ were not able to carry out the roles to the level required. Other roles that had fewer operational requirements and more administrative activities were not subject to the age limit.

This case could be distinguished from another, Vital Pérez v Ayuntamiento de Oviedo. Here an age limit of 30 could not be justified. The role in question here was largely administrative and there was no evidence to support such an age limit.

In the UK, an Employment Tribunal held in Baker v NATS that an age limit of 36 for new candidates to be trained as air traffic controllers was directly discriminatory. It could not be justified as there was no legitimate aim behind the policy.

Any decision to restrict applications only to those of a certain age group is a potentially risky one. Trying to justify an age limit requires clear and compelling evidence which, in many cases, may not exist or be readily obtainable.

Age discrimination and assessment centres

In the case Li v Vision Security Group Ltd, a experienced security worker went through a number of tests during an assessment day. He found himself to be the oldest applicant and so, when he has rejected, suspected age discrimination.

The Employment Tribunal disagreed and did not uphold his claim. It found that although his experience was substantial and impressive, it was not relevant to the role he had applied for. Other candidates scored much higher than him in tests of his Excel abilities and situational judgment abilities.

Although this case is a reassurance to employers, it comes with a note of caution. Employers should ensure that the tests used in an assessment day are not indirectly discriminatory.

What if age discrimination happens but the applicant doesn’t even want the job?

Is it age discrimination if someone is rejected for a job because they are "too old", but that someone didn't actually want the job? No, according to the EAT in Keane v Investigo.

In this case, Ms Keane was an experienced accountant who applied for many newly qualified accountant jobs. She brought age discrimination claims against those who rejected her, but the EAT said that she had suffered no detriment. Even if she were successful, she would not have accepted any of the positions.

A similar issue arose in Berry v Recruitment Revolution and the EAT made the same decision.

Comment

Age discrimination legislation came into force through the Employment Equality (Age Discrimination) Regulations 2006 (not, as many mistakenly believe, the “Age Discrimination Act 2006”) and has continued through into the Equality Act 2010.

Age discrimination can slip into recruitment processes all too easily. Employers should be mindful of this. They should regularly review their processes and ensure age discrimination is properly cover in all diversity training. 

Article updated 7 August 2019


Extra resources on age discrimination during recruitment


Cases involving age discrimination during the recruitment process

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