Tuesday, 9 October 2007

More red tape myths - age discrimination regulations

Which bit of the EMPLOYMENT EQUALITY (AGE) REGULATIONS 2006 does Kirsty Rogers, a lawyer quoted here in Personnel Today, not understand?

Ever since Age Discrimination regs came into force, busy-body human resources experts have been bandying around misleading claims that words like "experienced", "dynamic", or "energetic" in job adverts are illegal. I am not a lawyer, but to me the law seems pretty clear, and this is what is says:

Direct discrimination occurs where, because of B’s age, A treats B less favourably than he treats or would treat other persons unless A can objectively justify that treatment.

Indirect discrimination is taken to occur where –
• A applies to B a provision, criterion or practice which A applies equally to other persons; and
• that provision, criterion or practice puts persons of B’s age group at a particular disadvantage; and
• B suffers that disadvantage.

If B can show that he suffers in this way, then the provision, criterion or
practice is indirectly discriminatory unless A can show that it is a
proportionate means of achieving a legitimate aim.


(This, and excellent explanatory notes are freely available from the DTIs / BERR's website)

Note the last bit: "unless A can show that it is a proportionate means of achieving a legitimate aim."

Sure, specifying a certain level of experience would likely put a 16yr old at a disadvantage to a 30 yr old (i.e would be indirect discrimination according to the definition above), but if experience is important to the employer (and why would it be specified if it was not important?), then I'd be amazed if any court or tribunal denied that this was a "proportionate means of achieving a legitimate aim".

This is how urban myths about red tape arise - it is not from government, or Europe, or the courts. But from press releases sent out to garner publicty for the sender's organisation, whether they are a law firm, business organisation, or some other special interest group. Would Personnel Today have reproduced DWF's release if it had just said "age discrimination regulations just a matter of common sense, really". No. But they happily reproduce the sensationalist statistics, even headlining it "One in five job advertisements still fails to comply with age discrimination legislation". In the opinion of this law firm, they don't comply with the law. But has any tribunal or court found against an employer for legitimately asking for experience? Or liveliness? Or dynamism? Of course not. And if they do, I'll eat my hat.


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4 comments:

Productivity Guy said...

I feel experience, skill and knowledge are important, and at the same time experience can be overrated. It just depends on the person's ability to accomplish their tasks, whether they're young or old.

Erik
i4cp

Solicitors said...

The age discrimination issue is going to dwarf all other forms of discrimination, but in fact it's the young who are clearly suffering far more than the old. this is very bad for our future society.

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