Age laws: what they mean for graduate recruitment

Summary
The legal requirements
The changes employers are making
What should graduates do?
What employers and recruitment consultants should not do
Encountering age discrimination?

Summary

The age discrimination laws that came into force on 1 October 2006 are likely to have a significant impact on how employers recruit and behave towards graduates. In this article, Freda Line, Head of Employer Relations at Employers Forum on Age (EFA), will explore:

What the law does and does not require.
Where employers are making changes.
What this means for graduates.

The EFA is 'an independent network of leading employers who recognise the value of an age diverse workforce, and sets the agenda for age and employment issues in the UK. In addition to supporting employers, the EFA influences Government, business and trade unions, and has worked hard to ensure that the new age laws are workable. It works with over 250 of the UK’s largest employers, many of whom recruit graduates on a regular basis.'

The legal requirements

Age discrimination laws now make it unlawful to discriminate against anyone on the grounds of their age - not only in employment, but also seeking employment. No matter how old or young, anyone and everyone is now protected for ageist attitudes and behaviour. Discrimination can be direct or indirect.

Direct discrimination is easy to understand - for instance, obvious age bars or parameters such as ‘no more than 25’, ‘under 30’ or ‘between 22-28’. Direct discrimination also covers the concept of perceived or apparent age - ‘you don’t look old enough’.

Indirect discrimination is a bit more complex and is usually linked to time. So, seeking someone who ‘has graduated within the last two years’, or has ‘no more than three years' post-graduate experience’ would be potentially discriminatory.

The age laws differ from discrimination laws on race or gender in that they do allow employers to ‘justify’ discrimination. The Government anticipated that this would occur only in very rare and exceptional circumstances. It may be that we will see employers trying to justify setting indirect age limits in graduate recruitment by trying to argue that they have a legitimate aim in seeking recent graduates, perhaps because they believe they need the latest skills. But this would still mean that mature graduates - who had graduated recently - could apply and would have to be treated fairly.

The age regulations do also allow some other laws to take precedence - for instance, in health and safety, vehicle licensing and the sale of alcohol. Some sectors and industries also have standards or requirements that employers may use to set upper or lower limits to the age or experience of applicants. However, at the moment it is not clear whether these standards comply with the age laws (form statutory authority) or not. We’ll have to wait and see!

Age laws apply to all employers and recruiters, including recruitment and search and selection agents. Unlike other discrimination legislations, where smaller employers had more time to comply and some employers were initially exempt, there is no exemption for smaller employers and only the armed forces are exempt.

One thing that has confused people is that the law still allows employers and recruiting agencies to ask for date of birth and/or age and additionally allows them to ask for chronological information or dates relating to education, qualifications and previous employment.

There is no guidance in the legislation to what is or is not suitable language to use in recruitment adverts and literature. However, we can learn from what happened in Ireland, where there have been similar age laws for a while.

Case law: Ryanair

Ryanair advertised for a 'young, dynamic professional', claiming in their defence that 'young' could refer to 'young at heart'. Ryanair lost the case.

Of course it will no longer be appropriate to use words like ‘young’, ‘youthful’, ‘mature’ or ‘older’. It is very unclear what other words will be interpreted as ageist. Some have suggested that ‘energetic’, ‘dynamic’, ‘bright’, ‘enthusiastic’ should no longer be used, since they now have age-linked connotations. Others would argue that these words do not have direct age implications - and could be used. We may have to wait on case law to clarify this.

There is also likely to be confusion around ‘positive action’. The law makes it clear that employers will be able to seek to support and encourage particular age groups - perhaps those who are under-represented in their workplace. This could take the form of targeted advertising aimed at a specific age group, or it could be pre-employment training or extra help for candidates unused to the application processes.

The changes employers are making

There is a great deal of difference between merely complying with the law and what is known as ‘best practice’. Age-smart employers - for instance, the many graduate recruiters who work with the EFA - are clear that they want to fully comply with the law and go beyond that by visibly being open to candidates of all ages.

Good practice employers have, therefore, made a variety of changes in the way they attract and recruit graduates. For instance, they have:

Removed indirectly discriminatory references such as ‘recent graduate’, ‘graduated no earlier than 2004’, ‘no more than two years' postgraduate experience’.
Amended the language they have used in adverts - removing words that could be seen as ageist.
Made changes to their website - so that graduates of all ages have clearly signposted routes into the business.
Changed their graduate schemes so that they are more suitable for mature or atypical graduates.
Altered application forms and web-based forms so that they do not ask for age or date of birth - except for monitoring purposes.
Amended application forms so that they focus less on educational and career history (dates) and more on competency and skills - though employers may still ask for dates.
Provided advice or templates for CVs so that candidates send information in a less age or date based form.
Revised graduate recruitment literature - changing either language or images.
Expanded their list of milk round universities - including more institutions that offer part-time courses (which can be attractive to mature students).
Introduced new recruitment events to attract a greater variety of candidates.

Many members of the EFA are now using the ‘Age Aware’ logo on their literature and websites as an indicator that they are working hard to combat age discrimination.

In selection, employers have also revised their sifting mechanisms and checked that assessment processes are age neutral. Most age-smart employers have trained their recruitment teams on age issues and have particularly focused on interviews to ensure that interviewers and interview panels are fully aware of age laws. Employers have used some examples from Ireland to help get across the message that age-based remarks are now unlawful. Lawyers also think that overt references to ‘inexperienced’ may be seen as ageist.

Case law: Hughes v Aer Lingus

In Hughes v Aer Lingus, Ms Hughes was asked 'how she would cope with younger people being in charge and how, being older, she would feel about starting at the bottom of the ladder.'

Case law: Mahony and others v Revenue Commissioners (Ireland)

In Mahony and other v Revenue Commissioners (Ireland) the complainants argued that there was a clear pattern of discrimination in favour of younger candidates and one complainant stated that they had been asked at interview 'why are you going for this job at this stage?'

Case study: the Co-operative Group

The Co-operative Group have won awards for their graduate recruitment programme ‘Altogether Different’. They have developed a clear business case for recruiting a diverse age range of graduates. According to Rebecca Martin, their head of graduate recruitment:

‘Experienced graduates have joined the Co-operative Group from all walks of life including an Olympic athlete who pursued a commercial career after his sporting career, a teacher looking for a different career path, a consultant who had worked with the Group and discovered a strong affinity for our values and way of doing business and an experienced member of our operations team who decided to study for his degree alongside working in store.’

Case study: Marks & Spencer

Marks & Spencer are another leading member of the EFA who have amended their graduate programme. Sally Humpage, Employee Relations Manager, says: 'M&S have completely overhauled their Management Training offer and have launched a new Management Training Programme, which now has different points of entry and training which depend on your level of qualification and experience. You can apply to join the programme whether you are a:

A-level or school leaver
Degree level
Manager with retaik or relevant work experience

The business will then provide tailored training and support programmes dependent on qualifications and experience.

Sally concludes: ‘The great thing about the new M&S management training programme is that it allows entry for all people whatever their age - whether starting or changing career.’

What should graduates do?

Graduates of all ages should see a change in the attitude of employers and recruitment consultants as well as real changes in advertising language, website and literature imagery and the design of application forms.

But graduates need to play their part too - with the support of careers advisers and others.

When applying for a job graduates should:

Check to see that their prospective employers are a member of the EFA - that should mean they are fully up-to-speed on age laws.
If application forms or websites ask for competency and skills-based information be sure to follow their instructions and focus on these - don’t add in lots of age references or unwanted dates.
If sending in a CV, then take some time to re-structure it. Ensure that skills and competencies are focused up-front and minimize the date-related information - if possible keeping it to the second page.
At interview try to keep age references to a minimum.

What employers and recruitment consultants should not do

Although we may have to wait for case law to clarify some aspects of age laws, the law is fairly obvious. If a job candidate encounters ageism in making an application, or in going through the recruitment process, then he/she will be entitled to claim discrimination.

Job applicants should never be:

Asked how old they are.
Told that they look or seem younger/older than expected.
Asked how they ‘at their age/stage’ will fit into a youthful team.
Asked whether they are ‘up to’ a task whether this requires physical stamina or not.
Offered a lower salary than others because of their age.
Made to feel uncomfortable in any part of the recruitment process because they are of a different age to other candidates.
Patronised because of their ‘lack/excess of experience’.

Encountering age discrimination?

If anyone needs to seek advice because they think they have encountered age discrimination, then they should contact the Advisory, Conciliation and Arbitration Service (ACAS) or their local Citizens Advice Bureau. If you come across poor practice or ageist behaviour from an employer - whether a member of the EFA or not - then do let the EFA know. The Employers Forum on Age (EFA) can be contacted on 0845 456 2495.

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