Getting better with age? Avoiding discrimination in recruitment

The Chancellor of the Exchequer, Jeremy Hunt, recently set out a plan to help lift the UK’s economic growth. In his speech at Bloomberg's London HQ at the end of January, he stated there were almost 300,000 fewer people in employment than before the pandemic and, unusually, made a direct appeal to retirees in the UK to come back to work.

This comes at a time when anecdotal evidence from older people seeking employment which shows they actively avoid talking about their age in initial telephone interviews due to the perceived change in attitude of the interviewer when their actual age is revealed. Recent research from the Chartered Management Institute (CMI) suggests there may be a factual basis for this perception. The CMI’s research surveyed more than 1,000 managers in the UK. They found that only four out of ten of those surveyed were open ‘to a large extent’ to hiring people aged between 50 and 64, instead favouring the establishment of a younger workforce. But is this discriminatory?

Age is one of the characteristics protected under the Equality Act 2010. This means that people should not be discriminated against based on their age. An employer can be found to have been discriminatory at any stage in the employment relationship – including recruitment. This could be direct discrimination (e.g. an employer doesn’t hire an applicant just because of their age) or indirect discrimination (e.g. an employer implements recruitment criteria that apply equally to all applicants, but which has the effect of disadvantaging a certain age group). For example, a job advert should not generally include suggestions that applicants should be in a particular age group – like inviting ‘young and enthusiastic’ candidates to apply – as this could be considered discriminatory.

However, unlike with all other strands of discrimination, employers can seek to justify both direct and indirect age discrimination on the basis that any allegedly discriminatory actions were a ‘proportionate means of achieving a legitimate aim’. What this means in practice will depend largely on the individual facts and circumstances, but can include things like occupational requirements or length of service benefits. One of the most obvious examples of an occupational requirement might be stipulating that candidates for a role in a bar are aged 18 or over so they can serve alcohol.  

In roles where age requirements cannot be objectively justified, managers who share the opinion of those surveyed by CMI should think carefully about their recruitment strategy. At best, they may be missing out on the wealth of expertise and experience of older candidates, and at worst they could be faced with a discrimination claim in the Employment Tribunal (and the uncapped compensatory award that goes with it).  

If you’d like to discuss your recruitment strategy or any aspects of discrimination in the workplace, please get in touch with our specialist team.