Although many businesses are contemplating downsizing owing to the worsening economic situation, if you are recruiting staff it is important to remember that the Employment Equality (Age) Regulations 2006 make it unlawful to discriminate on grounds of age, including when advertising to fill a vacancy.
The case of Rainbow v Milton Keynes Council illustrates the danger to employers, when placing a job advertisement, of specifying the number of years’ experience required by applicants as this can be indirectly discriminatory. In some instances, this will be because potential candidates may have the necessary skills required for the job but be too young to have gained the qualifying length of experience or, as was the case here, because they are of an age where they are likely to have more years’ experience than stipulated in the advertisement.
Ms Rainbow, aged 61, had 34 years’ teaching experience and was therefore on a higher pay scale than a younger teacher. In October 2006, a full-time post became available at the school where she worked part-time. The job advertisement said that the post would suit ‘candidates in the first five years of their career'. Ms Rainbow applied for the post but was not short-listed for interview. She was told that the school wished to appoint someone on the same pay scale as the teacher who was leaving.
The Employment Tribunal (ET) found that the school had indirectly discriminated against Ms Rainbow because of her age. It had applied a practice that put her at a disadvantage, as someone over 60 is likely to have more than five years’ experience, and had provided no real evidence to justify the discrimination. The Council had sought to justify the practice on cost grounds, citing as its reason the financial constraints under which the school operated. However, it did not produce compelling evidence to show that it was forced to take the discriminatory action. For example, it had not investigated alternative cost saving measures.
The ET held that if an employer wishes to rely on cost as a factor when justifying discriminatory treatment, it should not be the sole factor.
Employers are advised to take extreme care when drafting job advertisements. It is important to focus on the requirements of the post and the type of experience necessary to fulfil the role. Apply these criteria when short-listing candidates and keep a record to show that decisions have been reached on an objective basis. It is unlikely that cost alone will be sufficient reason to justify an indirectly discriminatory practice.
This recent article regarding age discrimination and enhanced redundancy schemes may also be of interest.