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Is advertising for an 'office junior' ageist?

Can you place an advert for an 'office junior' given new laws on age discrimination? Advice on another tricky practice problem from barristers Michael Salter and Chris Bryden.

Can you place an advert for an 'office junior' given new laws on age discrimination? Advice on another tricky practice problem from barristers Michael Salter and Chris Bryden.

THE SITUATION

The Practice has traditionally employed a school leaver to assist with the running of the office in an "office junior" style role. I am told that I cannot place an advert asking for a 16-year old office junior now. Is that right?

THE ADVICE

Continuing the trend of recent Legal Lessons, this is another area where discrimination law is growing and so is of concern to many employers.

In 2006, Regulations were implemented which made illegal discrimination on grounds of age. Thus the Practice is no longer able to refuse to recruit a candidate solely on the grounds of that candidate's age.

It must be remembered that it is not just existing employees that these Regulations apply to – unsuccessful job applicants may also bring claims on the ground of age discrimination.

Discrimination on the grounds of age can occur where an age bracket is specified for an advertised role. Obviously therefore, including in the advert wording such as "age 16-18" would be discriminatory.

Less obviously, but equally discriminatory, would be wording such as "mature" as this is based on an assumption of age.

More subtle still would be an advert that requires "GCSE English" as a condition of employment. This is likely to discriminate (indirectly) against older applicants who left school before the GCSE scheme was introduced.

Thus any advert that the Practice wishes to place should not focus on age-specific requirements, but instead on the skills required and specifications of the job. For example rather than have an advert requiring "GCSE English" instead consider widening the requirement to "GCSE English or equivalent".

The application form must also be viewed with caution. Requirements to state the applicants' age or date of birth should be viewed carefully.

Whilst it is unlikely to be enough to mean that any unsuccessful applicant would win in a tribunal, it could potentially raise a feeling in the Tribunal's mind that age was a factor. In the experience of the authors, ages of applicants now tend to be collated on a separate Equal Opportunities Form along with questions of race and religion.

Similar caution should equally be applied where requesting information that could indicate the applicant's age: e.g. dates of examinations.

Once a shortlist of candidates has been drawn up and interviews arranged then once again caution needs to be exercised so that questions are not asked which are based on stereotyped views of suitability based on age.

So, for instance, questions about how an older employee would feel reporting to a younger Practice Manager should be avoided.

Finally, the very name of the role might need to be revisited to avoid any contention that the requirements for office "junior" meant older applicants were discouraged.

Whilst this itself might not be enough to mean an unsuccessful applicant would win at Tribunal it may again raise an inference that the employers were looking for people within a certain age range.

Age discrimination can, however, be justified provided it is in pursuance of a legitimate aim and that the means of achieving that aim are proportionate.

It should not be thought that age discrimination is solely the preserve of the older employee.

Recently an 18-year old won in excess of £16,000 when she was dismissed as being "too young" for the role she occupied. This is a new and growing field of employment law and as such it pays to be cautious to avoid becoming a "test case".

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