Experience Required?

The introduction of new age discrimination legislation is one of the biggest changes to employment law in the UK for 30 years. It affects all age groups. In the hospitality industry, where brand image and customer preferences often dictate staff recruitment, the recruitment process is a particularly vulnerable area. Successful claims can lead to high compensatory awards and damaging publicity.

WHO IS COVERED?

The new law applies to a wide range of people, and not solely employees. Job candidates of all descriptions are likely to be included, whether for internal or external vacancies, as are partners, casual staff and those on work placement schemes.

AVOID STEREOTYPES

Using language such as 'youthful', 'energetic' or 'mature' can deter applications from particular age groups. Making negative assumptions about a candidate based on age will be viewed as discriminatory. Imposing age bands for job applicants should be avoided – there are few jobs which by their nature require an individual to be a particular age.

In Ireland, where age discrimination has been in place for some time, Ryanair was found to have breached age discrimination laws by advertising for 'young and dynamic' candidates. ACAS recommends avoiding the use of terms such as 'energetic', 'dynamic', 'lively' and 'experienced' altogether on the basis that these adjectives can be used to denote a preferred age group.

The language used in job advertising, and the method of advertising, often reflect the nature and profile of the employer's business. Adverts placed in The Times will attract different candidates from those appearing on a website or youth magazine. Care must be taken to ensure the advert attracts responses from a broad spectrum of candidates. Graduate recruitment fairs, for instance, should now be only one of many methods for attracting candidates.

PITFALLS OF SEEKING OUT EXPERIENCE

The age regulations prevent the imposition of a condition, criterion or practice if it is less favourable to a particular age or age group. If you normally advertise for a specific level of experience, be very careful!

In many cases, it will not be necessary to ask for any specific level of experience. A requirement for a minimum number of years experience could indirectly discriminate against younger people. Conversely, a requirement for a maximum number of years' experience could indirectly discriminate against older employees.

These will only be permitted if they are capable of being objectively justified. Some employers are taking steps to do precisely that – first they identify the requirements for the job and then they establish whether those requirements could be met by someone with less experience. This process determines facts which could objectively justify the required experience in terms of years.

A safer approach is to stipulate the type of experience required for the particular job rather than referring to the number of years' experience as a prerequisite. This will ensure candidates who have built up skills over a shorter or longer period of time will not be excluded. Longer adverts with more information about the role will become more common.

Employers may worry about placing people of varying age groups within the same team, but claiming that a qualified candidate was excluded from selection on the basis of 'team fit' is no defence. Assumptions about the ability of young and old people to gel together in a team are clearly discriminatory.

WATCH OUT FOR AGEISM

Ageism is still largely accepted in society and ageist banter is commonplace. Consider the number of birthday cards in circulation with age-related jokes about their recipients being 'over the hill', 'past it' or 'almost ready for a free bus pass'.

The concept of age-neutral recruitment is a challenging one for all employers, but those who fail to act quickly face an expensive lesson in age discrimination law. Businesses can no longer rely on their customers' preferences to determine the staff they recruit, particularly where these preferences exclude capable employees who fail to meet age requirements.

There are a number of practical steps that can be taken to avoid falling foul of the age discrimination law:

• Focus on the skill set required to perform the job rather than stereotypes based on age
• Prepare a written note of the job you are recruiting for which identifies the essential skills and work experience required
• Consider whether your advert needs to refer to anything more than the job title
• Consider whether you can place a more detailed advert describing the role
• Only refer to the required years' experience when you know you can objectively justify it
• Remove date of birth and age from any standard application forms
• Advertise using a variety of methods
• Avoid ageist remarks at interview (interview notes may become evidence in any claim)
• Avoid age-biased images on promotional recruitment material
• Undertake staff training
• Update equal opportunity policies

Following these steps can help to ensure that your company's job adverts comply with age discrimination legislation, thus avoiding the associated penalties.