By Dawn Robertson, partner & accredited specialist in employment law, BTO Solicitors LLP
In the latest quarterly economic survey by Shropshire Chamber of Commerce, published last month, businesses across all sectors reported serious problems with recruiting sufficiently qualified and experienced staff.
Local businesses expressed particular concerns about young people not showing up for interviews or not completing their first week of employment. Shropshire Chamber’s chief executive, Ruth Ross, stated that some employers told the Chamber that they ‘are no longer recruiting anyone under 21 years of age’.
We have been reflecting on the results of this survey and considering the risk of age discrimination claims against these employers, and those with similar recruitment practices.
A recruitment policy of this type, namely treating workers under the age of 21 less favourably because of their age, is an example of direct age discrimination. An employer who is found to have discriminated against an employee unlawfully may be required to pay compensation in respect of the injury to feelings and the financial loss (if any) suffered by the individual.
It should be noted that an employer can lawfully discriminate on the basis of age where this treatment is ‘a proportionate means of achieving a legitimate aim’, however, this can be difficult to satisfy. Direct age discrimination is the only type of direct discrimination which can potentially be justified by an employer.
The Supreme Court held that in order to justify direct discrimination, the aim relied upon must relate to a social policy aim rather than, for example, the interests of the business (Seldon v Clarkson Wright and Jakes). Further guidance is provided by the Equality and Human Rights Commission in the Equality Act 2010 Statutory Code of Practice, which states that to be legitimate, the aim must be ‘legal and non-discriminatory, and one that represents a real, objective consideration’. The perceived risk that younger employees may be unreliable would not meet this test, so a policy of not hiring such employees would be unlawful.
Even if the aim pursued is a legitimate one, an employment tribunal must then consider whether the action taken by the employer is proportionate. In considering this, an employment tribunal would undertake a ‘balancing exercise’ between the importance of the legitimate aim pursued and the extent of the discriminatory effect.
Given the significant detrimental effect on prospective employees, and the fact that many other measures can be used to manage poor timekeeping or poor performance in the workplace, a policy of not hiring employees under the age of 21 would not be regarded as appropriate or necessary.
Taking all of this on board, it is clear that a policy not to hire young workers is unlawful age discrimination and that an employer doing so risks a significant award against them should an employment tribunal claim be raised.
Recruitment practices should ensure that those with ‘protected characteristics’ (for example age, gender and religious beliefs) are not at a disadvantage. As such, amongst other things, employers need to think about how and where they advertise and how to provide accessible means of applying, and interviewing, for new positions.
Employers should bear in mind that tribunal claims can be, and are, brought by candidates who never became employees or were even offered an interview.
If you would like advice on your business’s recruitment and hiring practices, it would be advisable to contact an employment lawyer.
