All About Age: Retain, Retrain, Recruit

6 minute read
21 July 2015

In March this year the former Government Champion for Older Workers, Ros Altmann, produced a report entitled 'A New Vision for Older Workers: Retain, Retrain, Recruit' which explicitly addressed the issue of age discrimination in recruitment:

"There is evidence of age discrimination in the recruitment process and the recruitment industry needs to raise its standards to ensure compliance with the law"

The Pension Minister's report is not in isolation in highlighting concerns about age discrimination within recruitment practices; June last year witnessed the Department of Work and Pensions (DWP) issuing its "Fuller Working Lives" report, aimed at creating a more flexible working environment to retain and recruit older workers. This was swiftly followed by the Business in the Community (BITC) publication "The Missing Million" in October, inspired by research which identified that in excess of a million people over 50 were unemployed yet were keen, but apparently unable to, return to the workplace.

Is the burgeoning demographic of older workers an issue that employers can afford to ignore? Not according to the Office of National Statistics (ONS), which has found that:

  • between 2012 - 2022, there will be an extra 3.7 million works aged between 50 and the state pension age; and
  • over the same period, a decrease of half a million workers aged 16 - 24 entering the labour market is predicted

This suggests that on a practical level to ignore this issue employers risk jeopardising the opportunity to tap into a wealth of talent and experience whilst simultaneously leaving themselves vulnerable to a dwindling supply of younger workers.

Moreover the risk of allegations of discrimination within recruitment practices remains. Discrimination in recruitment is, of course, unlawful, with protection for applicants cemented in the Equality Act 2010. This gives candidates the potential to pursue employment tribunal proceedings against prospective employers if they believe they have been discriminated against in the recruitment process. There is no requirement for the tribunal claimant here to actually be employed.

Care needs to be taken at every stage of the recruitment process, with particular attention to the content of job adverts and application forms, as highlighted in the case of Rainbow v Milton Keynes Council, where an advert for a teaching vacancy  stated it "would suit candidates in the first five years of their career". This was held to be indirect age discrimination by an employment tribunal when challenged by the 61 year old applicant.

What of maximum age limits in recruitment policies? This was dealt with in the European Court of Justice (ECJ) cases of both Perez v Ayuntamiento de Oviedo and Wolf v Stadt Frankfurt am Main. In Wolf a maximum recruitment age of 30 for firefighters was deemed as justified as an occupational requirement by the European Court of Justice due to the physically demanding nature of the job. A similar policy was debated in Perez, this time imposing a maximum age of 30 for recruits for a local police force in Spain. The ECJ compared Perez and Wolf and stated that the two were not directly comparable and that not all police force jobs required a high level of physical fitness that would justify an age limit, and was therefore discriminatory.

In the UK, tribunals have found the use of age-related restrictions in insurance by employers, as method of justifying not retaining older workers, to be age discrimination, as highlighted in the cases of Foreman v Oasis Taxis and the well-publicised Purple Parking case. In Foreman Oasis Taxis' insurerrefused to provide cover to drivers aged over 69. Mr Foreman brought successful age discrimination claim, with a Tribunal finding that Oasis did not use proportionate means to meet its legitimate aim of insuring its drivers, because it did not consultant any alternative insurance providers. Purple Parking also concerned insurance issues, with a Tribunal finding that the parking company had discriminated on the grounds of age when employees over 67 were told that they were too old to be insured by the policy. It was revealed that Purple Parking asked its insurer to include a specific age limit in its policy for certain employees, making it a case of direct discrimination.

The UK Tribunals have also thrown doubt over whether making certain qualifications a prerequisite for a job amounts to discrimination, as in the recent case of Games v University of Kent.

The law aside, is there really a problem with recruiting older workers? Yes' according to reports such as Ros Altmann's and the 'Missing Millions' report from the BITC.

The latter draws attention to the perception of older job applicants, and, by extension of old age in general. According to that report the UK perceives old age to begin at 59, whereas in Greece, for example, it is 68. Altmann cities a YouGov survey which revealed that 57% of unemployed workers in their 50s felt they struggled to find work because employers viewed them as 'old'. Recent press reports suggest a trend amongst UK managers  of considering older workers as less keen to work and develop.

Is there any light at the end of the "discriminatory tunnel"? Firstly, it is clear from the increasing amount of research available, from both government and organisations such as Age UK and BITC, that awareness of age discrimination within recruitment practices is on the rise. There is, however, a wealth of material to help employers avoid the discrimination trap, such as the recent Age UK & Recruitment & Employment Confederation (REC) Age Opportunity and Best Practice Guide, which lists key recommendations including dismissing stereotypes, using multiple platforms to advertise vacancies and developing an understanding of the benefits of recruiting older workers. This support should help employers avoid claims and also tap into a rich seam of talent that might otherwise be lost.

This article was first published on Thompson Reuters Accleus.

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