New Age Discrimination Legislation

We have run a series of seminars for clients and so we hope that most will now be reasonably up to speed with what they need to do. However the Regulations are very complicated and there are a large number of traps for the unwary. Therefore if you are unsure about any point, or if a new, unforeseen problem crops up, or if you would like us to run one of our workshops for you and/or your clients, please contact one of our specialist age discrimination team here (see contact details below).
In the meantime here are 10 key points for recruiters to remember:

ï Who is protected? The Regulations cover applicants for jobs /assignments, agency temps, contract workers, your own employees and any person who uses recruitment company services. Limited company contractors are probably also covered, and we suspect tribunals will in any event bend over backwards to give rights to as many categories of people supplying services as possible.

ï What is unlawful? It is unlawful to discriminate directly or indirectly on the basis of age. The Regulations apply to all ages (including discrimination against someone on the basis of apparent age), not just older age groups. Always ask ñ is a particular age group likely to be put at a disadvantage as a result of the practice?

ï Advertisements. Check advertisement wording to ensure that it does not give the reader the impression that it is aimed at a particular age group. Graduate schemes need to be carefully considered although (provided safeguards are in place) they will not always be unlawful. The Regulations may also apply to advertisements for jobs overseas.

ï Application documents. Look at age-related questions on application forms and decide whether they are really necessary and relevant.

ï Diversity questionnaires and training. Keep diversity information forms separate from interview notes/cv data. Avoid showing the diversity data to interviewers and the people who make decisions about shortlists/offers. Train all recruiters on diversity issues. Perhaps make a virtue of your separate compilation of diversity data and offer to send clients annual reports with anonymised diversity statistics relating to the age profiles of applicants.

ï Interviews. Be careful about notes made in interview. These are disclosable documents if any claim is subsequently made, and so you should always assume that what you write may be seen by the applicant at some stage. Avoid age-related questions.

ï Client instructions. Consider whether the clientís instructions could be discriminatory. If so seek objective reasoning from client for the instruction and work together to formulate non-discriminatory policies. Many recruitment companies are going through a process of trying to educate their clients on this point. And remember, the current view is that the Tribunals will be very unlikely to accept employers to argue that there were genuine occupational reasons for the discrimination.

ï Client liability. Remind the client that it will be liable for any act done by the recruitment company acting on the clientís instructions, and so the client cannot just pass the buck to the recruitment company.

ï Compensation. Claims are uncapped and do not require 12 monthsí service. Older workers applying for permanent roles may for example bring huge claims where they miss out on an opportunity to benefit from pension contributions.

ï Your own staff. Donít forget that the same principles apply internally and when recruiting, promoting, training, remunerating and dismissing your own staff. Bonus and commission schemes may become a battleground, and recruiters will have to be careful not to tend towards favouring dynamic young recruiters attracted to high commission.

There are of course a huge range of additional issues to consider, such as harassment on the basis of age (can people make jokes about old gits any more?). This note is therefore only a brief summary of some of the key points arising from the Regulations and should not be relied on in any decision to take action or not take action in relation to an age related matter. If you have any query about the Regulations and what you need to do please contact Howard Hymanson [0207 814 6936], Frances Lewis [0207 814 5495] and Matthew Tom [0207 814 6876] or your usual contact in the Tarlo Lyons Recruitment and Resourcing group.