Age discrimination during the recruitment process is unlawful under the Equality Act 2010. If you find that you have been discriminated against when applying for a job or during the interview process, you may be able to make a claim for age discrimination in the employment tribunal.
Examples of Age Discrimination during the Recruitment Process
When an employer is advertising a position within their organisation, they a should not include anything relating to age within the advert or anything that would suggest they are looking for a person within a certain age bracket. For example, unless it can be completely justified, they shouldn’t say things like:
- ‘looking for recent graduates’;
- ‘must have 10 years experience’;
- ‘the candidate must be young and enthusiastic’.
They are allowed to ask for your date of birth, for instance if it was for a job working behind a bar in a pub, they would be entitled to know that the candidate is over 18. This, however, should be included separate from the application and should be not used as the basis for a decision as to who gets the role (unless it is for legal purposes).
Essentially, the employer, must ensure that they getting a diverse range of candidates for the job and shouldn’t single out any particular group because of age.
Health Related Questions
During the recruitment process, the employer should not ask questions which are health related or related to a disability. There are very few circumstances in which they are allowed to ask these details, these are as follows:
- If the candidate has been offered the job;
- If the employer needs to know any health or disability requirements for the new employee;
- So the employer is able to ensure that there is diversity amongst the candidates;
- If the candidate is part of a pool of other successful candidates who may be offered a job if and when it becomes available;
In all other circumstances, you should not be required to answer questions about your health or a disability, prior to being offered a job. Even questions relating to sickness and absence with a previous employer would be considered to be discriminatory.
The employer is, however, allowed to ask potential candidates to fill in a form which asks if they have a disability, this should not, however, be used as part of the decision making process when recruiting.
Once the job has been offered to a potential candidate, the employer is then permitted to asked questions about health and disability, if fundamental parts of the job would be difficult or not possible with certain types of ill health or disability. For instance, if the job required heavy lifting and the candidate had long term back problems.
Agency workers are entitled to be treated the same as employees. They should not be discriminated against and therefore any selection for a job should not be made based an agency workers age.
Positive action is when an employer tries to encourage less advantaged groups to apply for a role within an organisation. For instance, if an employer finds that there lots of young people working for their organisation they are able to encourage older people to apply for a position as long as they don’t discriminate against younger people.
If the employer states that only older people can apply for the position within an organisation, when the job could be done just as well by someone who was younger, this would be considered as positive discrimination, not positive action.
Ultimately, employers should always base their decision on who is the best candidate for the job.
If there are two candidates with the same skills and qualifications, the employer is then able to make a decision based on positive action.
For instance, if one candidate is older than the other and the employer wants to increase diversity within a predominantly young organisation, they are able to choose the older candidate. They do however have to be careful when doing this as they need to prove that both candidates had the same skill levels and qualifications before making a decision based on positive action.
Tom Street qualified as a solicitor in 2003 and has over 20 years experience in employment and litigation law. He studied law at the University of Manchester before undertaking the legal practice course at the College of Law in Guildford, going on to complete his legal training at a firm in Chancery Lane, London. Once fully qualified, he moved to a niche litigation practice in the City of London.
In 2010, Tom set up his own legal practice, Tom Street & Co Solicitors and as part of this, in accordance with his strongly held objective to provide everyone with an easy pathway to justice he established the online portals Do I Have A Case? and Tribunal Claim. These websites are trading names of Tom Street & Co Solicitors.