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It Pays to Advertise, but it Could Cost you to Discriminate October 30, 2006

Posted by C.A.R.D in Card, Citizens Against Racism and Discrimination, Discriminate, Racism, Sexism.

It is likely to take a considerable time before ageism in the UK is viewed with the same social opprobrium as racism or sexism – or even speeding or drunk driving. With the benefit of hindsight, there is no doubt that legislation, although derided at the time, irreversibly altered social attitudes on these issues.

In Ireland, which has had anti-ageism laws in place since 1998, age now accounts for 19% of employment cases, although Denmark which introduced legislation in 2004, has only seen two tribunal actions. Certainly, it will take some time in the UK for case law to provide guidance in these uncharted waters.

In a nutshell, the new law dictates that workers cannot be sacked for being too old or too young. They will have a right to ask to work beyond 65 and their employers will have to give them at least six months’ notice of when they expect them to retire. It will be difficult to justify retirements before the new default retirement age of 65. There must be no age discrimination in respect of training or promotion.

The most immediate impact of the legislation, however, is in job recruitment, since ageist recruiting practices are now outlawed and employers will have to studiously avoid using age-specific terminology, such as “young”, or  “mature” or potentially ageist terminology such as “dynamic” or “energetic” in employment advertisements.

It is unlawful, except in certain narrow specified circumstances, to advertise for potential employees or contractors to be employed in the UK in a way that indicates or might reasonably be understood as indicating, an intention to discriminate on the grounds of age.

The question is whether an “ordinary, reasonable person with no special knowledge” will think the advertisement is discriminatory. If someone quite reasonably concludes from an advertisement that the advertiser intends to discriminate on the grounds of age, the advertisement is likely to be unlawful, whatever the advertiser’s actual intentions.

Employers, advertisers and recruitment agencies will have to scan their adverts with the same vigour that newspapers have their articles read for potential prejudice or defamation liability – because the sanctions are quite severe.

The terms of the adverts should be closely scrutinised, with particular emphasis on job descriptions and personal specifications. Specifying a minimum number of years of experience, for instance, could be construed as discriminatory if it could not be demonstrated to be strictly necessary.

As well as language, employers and advertisers must also be aware of hidden messages that may be present in advertisements such as the pictures used and must also ensure that the advert itself is accessible to a wide audience. Pictures or images accompanying an advertisement should be considered carefully in case they create an image of the company which might alienate, discourage or exclude particular age groups.

Care will need to be taken to ensure that desired qualifications or personal attributes in job advertisements do not disadvantage any particular age group. If they are deemed likely to, consideration should be given to alternative ways of eliciting the information.

Asking for a date of birth or even the applicant’s current age should no longer be done as a matter of course. These details could be included in separate equality or diversity monitoring forms.  Asking for an educational history could also be seen as leading to assumptions based on age. And employers should ask themselves if a request for photographs to accompany an application is strictly necessary.

A 55-year-old or for that matter a 21 year old or a 40 year old with relevant experience who fails to gain an interview, or goes through the interview process unsuccessfully, will be able to ask for the age profile of all those interviewed and the age of the person appointed. They will be able to lodge an employment tribunal application even though they were not appointed if they think the reason for their non-selection was their age and a tribunal can award them compensation for injury to feelings.

It is only a matter of time before the new legislation is tested.  All employees will have a potential claim at some point in their working life and employers should use the breathing space to run age awareness workshops for all employees and make the first steps in changing the social climate.

Source: All Media Scotland

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