According to Employee Benefits blog, an Industrial Tribunal has awarded £3,000 to a 63-year-old man who was told he was too old to apply for a job as a store person and van driver by Spring and Airbrake Ireland.

Mr Matier told the hearing that he telephoned the company about the vacancy.  He was asked his age and was subsequently told there was no point in applying because the organisation was looking for a younger person who could be trained and “moved upstairs”.

The Tribunal accepted that this conversation dissuaded Mr Matier from applying for the job and amounted to direct age discrimination.  He was awarded £3,000 (presumably for injuries to his feelings).

The Tribunal made finds of fact and accepted Mr Matier's evidence.  Despite that, the company have said they may appeal.  I don't rate their chances. 

An employer can try and justify direct age discrimination (unlike other forms of discrimination) if it can show that its treatment of, for example, a  job applicant was "a proportionate means of achieving a legitimate aim".  This is not as easy as it might sound.

Legitimate aims generally have to be linked to social policy rather than an employers own preferences - these can include encouraging career progression, promoting inter-generational fairness and rewarding employee loyalty.  Even if an employer can establish a legitimate aim, it has to show that its approach is proportionate. Generally, if there is a less discriminatory way of achieving the same objective, the employer will fail that part of the test. 

The Equality and Human Rights Commission Code contains this example which examines the proportionality element of the test:

A fashion retailer rejects a middle-aged woman as a sales assistant on the grounds that she is "too old" for the job. They tell her that they need to attract the young customer base at which their clothing is targeted. If this corresponds to a real business need on the part of the retailer, it could qualify as a legitimate aim. However, rejecting this middle-aged woman is unlikely to be a proportionate means of achieving this aim; a requirement for all sales assistants to have knowledge of the products and fashion awareness would be a less discriminatory means of making sure the aim is achieved. (Paragraph 3.41.)

Tips for employers about job adverts

Instead, of focusing on age, you should consider the skills and qualities required to undertake the role and use neutral language to describe these. 

Ask yourself whether it is really necessary for a candidate to have a certain number of years’ experience, and if so, why? Could it be, for example, that what you really need is someone who is able to work independently with minimum support, to liaise with senior individuals and to supervise and mentor others? If so – say so in the advert, rather than referring to a number of years’ experience.

Many job applications ask candidates to demonstrate that they have particular qualifications. Whilst this may be essential for some positions (for example, you would expect a doctor or teacher to have appropriate professional qualifications), the number and type of qualifications required for other posts may be less obvious.

It is sensible when asking for qualifications to make it clear that you will also consider candidates with “equivalent levels of skill or knowledge” to avoid disadvantaging candidates (such as older candidates or ones of different nationalities) who may not otherwise be able to meet this criteria. For example, if you need candidates to have a certain number of GSCEs, add the words “or equivalent qualifications” to avoid candidates (who are older and took ‘O’ levels, or who went to school abroad) not applying for the post. 

You can minimise your risk of discrimination claims by asking yourself the following questions before writing the job advert:- 

1. Why am I including a specific requirement in this advertisement? What am I trying to achieve by doing so;

2. Is there another way that I could achieve that aim which would not disadvantage people from a particular group or with a protected characteristic? 

Whatever else you do, avoid any language that could be interpreted as age specific. For example, an advert seeking “mature” candidates may exclude younger candidates. Similarly, asking for an “active and energetic” or a “recent graduate” may exclude older candidates.

Need more information?

Please contact our expert Sybille Steiner: Sybille.steiner@irwinmitchell.com or 44 (0)207 421 3969.

Our fixed price employment law service

If you are interested in finding out about how we can support you with our fixed-fee annual retainer, or flexible discounted bank of hours service, please contact Rachel Hetherington: rachel.hetherington@irwinmitchell.com or: 44 (0)121 203 5355 for a no obligation quote.