The Legal 500

The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006. The Regulations apply to all businesses, irrespective of size, and protect employees across the age spectrum. The Regulations afford protection from direct discrimination, and also prohibit indirect discrimination, instructing someone to discriminate and aiding unlawful acts. The Regulations also protect those falling with an ‘age group' and prohibit discrimination on the grounds of perceived age.

Regulations and Work Permit Requirements

As part of the UK work permit criteria, employers normally need to demonstrate to Work Permits (UK), part of the Home Office's Immigration and Nationality Directorate, that a genuine attempt has been made to recruit from the resident labour market and provide evidence that no suitable employee from either the UK or the EEA labour market is available to fill the post. To satisfy this requirement, the employer must advertise the job in the most appropriate medium that provides the best way of reaching suitably qualified resident workers. Advertisements will need to provide details of the post (ie job title and a description of the job duties and responsibilities), the employer, the location of the job, the qualifications and experience needed and an indication of the salary or salary range.

The Regulations will undoubtedly have an impact on employers who wish to submit a recruitment advertisement in the resident labour market, to satisfy the work permit requirements. Extra care and attention will therefore need to be afforded when drafting such adverts. The following provides further guidance on the particular drafting issues employers should consider.

Age Limits

The inclusion of an age limit (minimum or maximum) in a recruitment advertisement will be considered an obvious form of age discrimination.

An advertisement requiring ‘applicants over the age of 45 to fill a post as a care worker in a residential care home for the elderly' would be indirectly discriminatory, as would an advertisement stating that ‘under 25s are required by cutting-edge fashion retailer as shop floor assistants'.

Examples of indirect discrimination also include requirements for a ‘school leaver' or a ‘young and enthusiastic' worker, as these descriptions may discourage older applicants from applying.

Referring to an organisation as ‘young and dynamic' is also discriminatory, as it may encourage only younger people to apply. Whether this is a reference to the organisation or those who work within it is immaterial.

Experience

The requirement for a minimum or maximum level of experience will be discriminatory unless it can be justified. An advertisement which requires a ‘qualified solicitor with two to five years' PQE' discriminates against both younger and older members of the workforce.

Qualifications and Maturity

A selection process may be indirectly discriminatory if qualifications which are more likely to be held by persons of a particular age are required. For example, older members of the workforce are unlikely to have degrees in leisure management or audio and music technology.

The requirement for specific GCSEs will also discriminate against older members of the workforce, who will have O-levels instead.

At the other end of the spectrum, expressing a preference for ‘mature' applicants is likely to be viewed as indirectly discriminatory both by applicants and a tribunal. It discourages younger applicants who may be able to perform the duties of the role equally well, by suggesting that older applicants will be preferred.

The requirement for a ‘recent graduate' may suggest a preference towards younger applicants, and should also be avoided.

Exemptions and Justifications

A number of exemptions may be applicable to recruitment advertisements. These include:

• a genuine occupational requirement for applicants of a particular age or age group;
• the application of statutory authority requiring a minimum (or maximum) age for the purposes of the role;
• justification of the discrimination on the basis of a proportionate means of achieving a legitimate aim;
• positive action;
• the effect of Regulations 7(4), (5) and (8) to exclude applicants aged 65 or over;
• national minimum wage; and
• service-related benefits.

Conclusion

The Regulations will undoubtedly have a profound impact on the practices employers currently apply in their recruitment and selection processes. Although exemptions may apply in some circumstances, these are likely to be relatively rare. Further, demonstrating that an act or practice is a proportionate means of achieving a legitimate aim so as to satisfy the requirements of justification will be difficult. Employers must be aware of the purpose of the Regulations and ensure that their recruitment advertisements do not fall foul of them.

By Rachael Mason and Zulaykha Bhaijee, solicitors, Magrath & Co.

E-mail: rachael.mason@magrath.co.uk; zulaykha.bhaijee@magrath.co.uk.

For more information please visit www.magrath.co.uk.