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Good reasons to ask for proof of age

16 November 2006

I have every sympathy with John Gater (Letters, 26 October, page 18) and his attempts to comply with both the new age discrimination legislation and the licensing laws.

It is perfectly legal to employ a 16- or 17-year-old in licensed premises, provided any sale made by that person is "specifically approved" by a responsible person over the age of 18. Unauthorised sales can be made for consumption with a table meal in restaurants or in dining areas of other licensed premises.

However, while the new age discrimination laws make it clear you cannot discriminate against an applicant on account of their age in the recruitment process, less favourable treatment is lawful where the act or treatment is required under a statutory provision or where it can be objectively justified. Since young employees cannot always be in the company of an adult, Mr Gater is required by the Licensing Act 2003 to ensure recruits are over 16 and "must take all reasonable steps to establish the individual's age". I believe, therefore, Mr Gater can continue to ask applicants for employment in his licensed premises for proof of age on his application forms, both under the statutory exemption and on the basis this would be objectively justified.

Proof of age should be verified for payroll, immigration and/or passport purposes in any event.

The new age discrimination regulations allow Mr Gater to ask for proof of age in these circumstances, because the reason for doing so is to comply with the provisions of the Licensing Act 2003, both in ensuring staff are over 16 and to balance the number of supervisors available against the young employees.

This exemption would not be available, however, if Mr Gater was employing head office staff, for example. As such, I consider that asking for age on a routine basis should be avoided as a matter of course, but it is permissible in relation to specific posts such as the one referred to.

Rob Westwood-Payne
Licensing associate solicitor, Bevan Brittan solicitors

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