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The Actuary The magazine of the Institute & Faculty of Actuaries
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Recruitment: Avoiding the age trap

In 2006 the Employment Equality (Age) Regulations in the UK made it unlawful to discriminate against workers, employees, job seekers and trainees because of their age. So, four years on, where are we now? There has definitely been increased awareness of the legislation, but more is needed. We hope that this article will help you avoid some of the more common traps.

The law of unintended consequences states that the actions of people, and especially of government, always have effects that are unanticipated or unintended. While the reason for the age discrimination legislation is laudable, it has thrown some strange, and we are sure unintended, consequences into the recruitment process. A number of ‘serial litigants’ have made a living out of taking employers to court over the Act. David Head in the March issue of Recruitment International explains...

“The first that most employers hear of such a person is when they receive a letter from the government’s employment tribunal service, shortly after having posted a vacancy on the internet. The potential litigant searches for words such as ‘school leaver’ and ‘recent graduate’ and then ‘invites’ the employer to court. For extra pressure, he usually chooses a court located at the other end of the country to the company involved, making it much easier for them to decide to settle out of court — usually starting from £3,000. So far, 50 recruitment companies are known to have been involved and it is not known how many direct employers have been affected.”

The cost of fighting a nuisance claim can be enormous in terms of money and management time. There is no limit on the compensation that may be awarded. Also, the onus is primarily on the company to prove that they did not discriminate as opposed to the claimant proving that they had. It is important to remember that a job applicant can make a claim to an employment tribunal — it’s not necessary to be an employee.

Specifying a number of years’ experience may be classified as indirect discrimination and, in most cases, could form the basis of a claim. If a job is advertised as suitable for someone with three to four years’ experience, why not someone with two or ten years’ experience? If a number of years’ experience is stated, it must be wholly justifiable. Experience is still a relevant criterion, but you need to make sure that you do not bar anyone from applying. So instead of being able to say ‘x’ years’ experience, this will now have to be spelt out in terms of exactly what this amount represents. Phrases like ‘CT series’ describing the number of actuarial exams needed must be replaced by ‘CT series or equivalent’ to take into account candidates of all ages, as the exam structure has been evolving and the CT designation for exams is a recent innovation.

As well as avoiding words that are obviously age-related, such as ‘young’ or ‘mature’, you should be alert for categories that indirectly apply predominantly to specific age-ranges. For example, the majority of ‘new graduates’ are under 25, likewise, ‘newly qualified’ has connotations of a certain age group. Amazingly, there is a legal precedent that the word ‘dynamic’ is discriminatory as it is deemed to imply energy and youth!

In terms of graduate recruitment, getting in touch with universities and advertising for graduates only in graduate publications can be considered discriminatory because it targets a particular age group. This is still allowable provided adverts are also placed or aimed at wider audiences, so that awareness and applications from different age groups are not restricted.

Despite having had almost four years to settle in, many job advertisements continue to use language that could be considered discriminatory. We were recently sent a job specification asking for a candidate who was dynamic with at least ten years’ experience — discriminating in both directions! Recruiters cannot argue that they are simply passing on clients’ requirements — recruiters should look at this as an opportunity to educate clients and demonstrate their knowledge of the legislation.

The best way to stay within the legislation is to write a comprehensive, competency-based job description detailing the skills they will need to carry out the role. The more you include, the more candidates will be able to see whether or not they are suitable for the role.

As a final note, the above applies not just to job advertisements — you may wish to view/review your interview methodology and training to avoid anything potentially discriminatory slipping through.