Age Discrimination and Recruitment

Under the new law, employers will no longer be able to discriminate in recruitment on age grounds unless:

• this can be objectively justified – see below Justification;

• age is a genuine occupational requirement for the job - see below Genuine occupational requirements;

• the person is over the employer's normal retirement age - which must be 65 or over - or, if the employer does not have a normal retirement age, over 65; or

• the person would, within six months from the date of his or her application to the employer, reach the employer's normal retirement age, or, if the employer does not have a normal retirement age, age 65.

There is no similar exception applying to admission to partnership. Refusal of admission to partnership on age grounds will be lawful only if the age grounds can be objectively justified.

Justification

Under the Employment Equality (Age) Regulations 2006, it will be possible for an employer to justify direct, as well as indirect discrimination. Under the sex, race, sexual orientation and religion or belief discrimination legislation only indirect discrimination can be justified.

As a result, discrimination will not be unlawful if the person discriminating can show that the treatment, or the provision, criterion or practice, is a proportionate means of achieving a legitimate aim.

Genuine occupational requirements

Under the Employment Equality (Age) Regulations 2006, a job can be restricted to people of a certain age where, having regard to the nature of the employment or context in which it is carried out, being of that age is a genuine and determining occupational requirement and it is proportionate for the employer to apply the requirement. It will not be unlawful to refuse a job or promotion to someone where a genuine occupational requirement applies and either:

• the person to whom the requirement is applied does not meet it; or

• the employer is not satisfied, and in all the circumstances it is reasonable for it not to be satisfied, that the person meets it.

The government consultation paper Equality and diversity: coming of age suggested that age will be a genuine occupational requirement in very few cases, and gave an example of acting jobs.

The ACAS guidance Age and the workplace: Putting the Employment Equality (Age) Regulations 2006 into practice (PDF format, 562K) (available on the ACAS website) says that, where an organisation advises on and promotes rights for older people, it might be able to show that it is essential for the chief executive, the public face of the organisation, to be of a certain age, in which case the age of the holder of the post may be a genuine occupational requirement.

Employment Law Update:
How will the new legislation on age discrimination affect you?

The following is designed to give you a brief overview of the new age legislation coming into force later this year.  It provides key information that you should consider in relation to your employees.  For further advice please contact a member of the Personnel Advice Service on extension 2080.