Age Discrimination – Top 5 questions from employers

1.Do Employees now have an automatic right to work beyond the age of 65?

This was the biggest misconception of the Age Regulations. In fact the right is to request that their employer consider their request to work beyond 65. If an employee makes that request then an employer is obliged to follow a process and consider it, but ultimately the decision is with the employer whether the employee does work beyond 65 or not. Employers have a wide discretion as to whether they grant that request.

2.Can Businesses ask for a candidate’s age or date of birth on application forms?

The Regs don’t expressly say anything specifically about application forms, but it is going to be good practice to take questions about age and date of birth out of the main application form, and instead collect it in a separate diversity monitoring form. You are never going to devise an entirely age-neutral application form. Employers can still ask questions about the candidate’s employment history and qualifications for example, from which inferences can be drawn about their age profile. Employers would do just as well to focus on diversity training for those involved in recruitment exercises.

3.Can Employers ask for a specified number of years’ experience in job advertisements?

Asking for a certain level of experience does indirectly discriminate against younger candidates. You may be able to justify that, but it will probably be difficult. Some jobs do need to be filled by employees with a certain level of experience. Most employers would be better off however spelling out the competencies needed.

4. CAn Employers reward loyalty because service-related pay or benefits are now banned?

The Regulations actually provide an automatic exemption for pay and benefits which are based on service up to five years. For pay and benefit based on more than five years’ service, as an employer you will need to show you had a good business reason for having a service qualification, such as the desire to reward loyalty. In relation to service-related pay, that has been helped by a recent decision in the European Court that decided that employers can often reward length of service with higher pay, as experience often does go hand-in-hand with longer service.

5.Am I  responsible for what an employment agency does on my behalf, or for what my clients or customers do?

The Age Regulations can make you responsible for what, for example, a recruitment agency does acting on your behalf. You can also be responsible for the actions of customers and clients. You do need to ensure that they act appropriately and in accordance with company equality and diversity policies.