And as much as it can be a concern for job applicants, of all the protected characteristics, age discrimination is arguably the easiest one for employers to accidentally fall foul of, particularly during recruitment.
There are some exceptions where age can be taken into account in recruitment. Where there is a legal requirement such as the need to be 18 to sell alcohol, where there is a genuine occupational requirement such as needing an actor of a particular age to play a character or where the discrimination can be objectively justified then equality legislation will not be breached. However, if the job in question is not covered by such an exception then the risk of discriminating arises from the very outset of the recruitment process.
Advertising for candidates is a potential minefield. Statements such as "would suit a recent graduate", "10 years experience required" or even references to a requirement to be "energetic and dynamic" could give a candidate who has been rejected the opportunity to claim age discrimination had occurred. Where the advert is placed can also be problematic - any targeting to particular publications read only by a certain age group would need to be objectively justified to avoid being indirectly discriminatory. The same applies to companies who recruit primarily via university career fairs. Equally, if a certain number of years experience is required then that will need to be objectively justified.
The next stage - the application process - also needs to be carefully thought through. Application forms shouldn't seek information about age or date of birth (other than for equality monitoring purposes in which case the information should be kept separately from the application) nor should other ways of identifying age be included such as a request for a photo. In order to comply with the equality legislation employers must ensure that they are only asking for information that is directly relevant to the role being advertised.
The interview process can also raise age discrimination issues. Questions that could be used to determine a candidate's age, such as how long is it since you left school or university, should be avoided. Similarly all candidates should be asked similar questions - saving questions such as "how do you stay motivated?" or "how long do you plan working for?" for older applicants could be used as an inference of discrimination in the selection process. It goes without saying that those carrying out the interview should have had training in diversity and equality issues.
From the perspective of the job applicant it can be very difficult to assess the real reason why an application has been unsuccessful. However, if an individual has any concerns that their age may have been a factor the first step is to seek feed back from the employer on their application. If concerns persist then there is the option of raising a tribunal claim. The Tribunal can compensate for loss of earnings and injury to feelings if a claim is successful, but they cannot force an employer to subsequently employee a successful Claimant.
Discrimination is rarely overt and as such proving it can seem like something of an uphill struggle for a job applicant. However Tribunals will look for evidence from which inferences of discrimination can be taken. This includes not only the examples of poorly worded adverts and ill thought out interview questions above, but also looking at an organisations recruitment history - are the successful applicants always under 30 perhaps - or the age range of existing employees. If a company has an unspoken policy of recruiting within a limited age range then the necessary proof will be available.
If you have concerns - as either an employer or an employee - about discrimination during recruitment, employment or beyond please contact us on the details below.