News Analysis

The Employment Equality (Age) Regulations 2006 came into force on Sunday (1 October) and will have the widest reaching impact on employment that the UK has ever seen. Even the Department of Trade and Industry is bracing itself for up to 8000 claims in the first year of the new legislation.

But what does it actually mean? Okay, the obvious target of getting older people to be considered by employers is at the forefront of the Government’s mind, but when you consider that almost a third of young employees feel that they are discriminated against age-wise, it could benefit us all. However, it means that employers – and recruitment advertisers – have to be careful about how they advertise for staff.

Years ago, the words ‘young’, ‘youthful’ and, also, ‘mature’ were commonplace in jobs ads.

But having taken a look at a selection of job ads in the trade magazines (The Drum included) none asked for young or mature applicants. However several asked for ‘recent graduates’, something – which under the new laws – could also land you in trouble.

Recent graduates are more likely to be younger, although it is accepted that some are older students. To ask for a ‘recent graduate’, you’d have to prove that a 45 year-old graduate who graduated ten years ago in economics was less suitable for the job than a twenty-five year old who’s just graduated.

“The only way you can ask for a ‘recent graduate’ is if you can justify it,” says Emma Bell, partner in the employment division at Brodies Solicitors. “For example, I could ask for a recent graduate in CAD Design, because they have to be up-to-date in what they know.”

Bell advises advertisers to be very careful of their words, and in particular, not to use language that could be taken to insinuate age.

“Words such as ‘young-minded’, ‘energetic’ or ’10 years experience’ – all of them could be taken as indirect discrimination,” she says. “If I said I wanted an art director with 10 years’ experience – with my justification being that’s what I thought they would need to manage a team of ten and a £1 million budget – that could be taken as indirect discrimination. But if I was to say I need someone to manage a large team and budget, that would be different.”

The stipulation of ‘at least five Standard Grades and two Highers’ that often appears has also got to be qualified as it would fall foul of the law, as older candidates would not have sat those qualifications. “You would have to ask for ‘or equivalent,” explains Bell.

John Denholm, director of Denholm Associates, believes the new legislation will prompt a flow of business into recruitment agencies, as smaller agencies and companies struggle with the now myriad red-tape around employing people. “I think lots of clients will no longer be able to treat HR as something for a junior member of staff,” he says.

Denholm Associates recently received some legal training on the new law, which advised against also asking for degree-level qualifications when none were actually required; for example, asking for a graduate for a sales role, when in actual fact, someone with excellent experience may have never been to university.

“We’re being encouraged to say to our clients ‘why do you want someone young?’,” says Denholm. “We ask them to look beyond that prejudice. A lot more thought is going to go into thinking about the specification of clients. You’ve still got to recruit on skills, it’s just that you’re not allowed to justify it on age.”

Gerry Farrell, creative director of The Leith Agency, who champions recruiting creatives to Scotland, is concerned that the new laws will just prompt an even-more sinister side of recruitment. “Surely it just means there will be silent discrimination,” he says. “If a young person and an older person came to me with similar standard of book, then I’d be more interested in the younger person. I think it’s less about age and more about baggage. The younger person’s like a blank canvas, and if their work is that good when they’re young... Older people have set ways of working. If someone came to me at 40 with a great book and hadn’t been around the block, then I’d be very interested. I think it’s a good thing, particularly in advertising. I used to think I’d be out of advertising by the time I was 40.”

Bell warns that the law doesn’t just cover employing people, it also covers getting rid of them too. “The law covers redundancy terms as well,” she says. “Companies have to ask ‘how do I select people for redundancy?’. The usual system is ‘last in – first out’, which in itself could be indirect discrimination. The last people in are more likely to be younger and therefore being discriminated against in favour of older people who have been at the company for longer. I believe ‘last in – first out’ will be a redundancy criteria that people will no longer use.”

Long-service bonuses and perks that many companies have will also be covered under the new law. “The system some companies have of ‘one week extra of holiday per year of service’ is fine up to five years, but after that you have to prove why those more experienced people – who are often older – are getting an added reward,” says Bell.

One myth that seems to have being doing the rounds since the law was announced is that advertisers would be unable to advertise solely on the internet or in print or in a Job Centre. In fact, while partly true, it’s more where the advert is shown. Jobs have to be advertised where a broad range of ages would see it, so advertising only online is fine as long as the ad didn’t only appear on a site such as Saga, which has a defined demographic audience. According to a spokesperson from the DTi, as long as an advert is ‘advertised to a broad age base it is not discriminatory’.

Last word has to go to Farrell, who says: “There is a lot of ageism in this industry but most of it’s from the young people who think agencies shouldn’t be full of old farts, but I believe there’s still a place for age as there’s a lot of experience there.”