A new restaurant is due to open this month. Its target market is young professionals, and the owners are keen to ensure that the staff they employ reflect this. They intend to advertise for staff aged between 20 and 35, but are concerned about age discrimination.
The law It is currently lawful for a business to advertise for and recruit applicants on the basis of their age, regardless of the fact that by doing so it would be prejudicing applicants who do not meet the age criterion. However, this position will change from 1 October this year, when age discrimination legislation will be introduced in England and Wales.
Expert advice The law is not yet finalised but, after 1 October, it could be unlawful for the owners to advertise for applicants:
- Who are "aged between 20 and 35", as this would treat those outside of the age group less favourably (direct discrimination);
- With, for example, "six or more years' experience", as it is unlikely that applicants aged 19 and below would have such experience and would not be able to comply with this criterion (indirect discrimination); or
- Solely in papers, magazines or other publications whose main market is individuals aged between, say, 20 and 30, as, again, those falling outside the target group will have been discriminated against because they are unlikely to see the advert.
Each of the approaches is potentially discriminatory, but this would not necessarily prevent the owners from advertising in this way. Discriminatory treatment on the grounds of age can be lawful where the treatment in question is justified.
For it to be justified, and therefore lawful, the owners would need to show that they have a genuine business need for staff of a certain age and that advertising to this target group is both necessary and an appropriate way in which to achieve that objective.
In our hypothetical situation, the owners might be able to justify the recruitment of waiting and bar staff aged between 20 and 35, on the basis that youthful staff will complement both the targeted young professional customers and the atmosphere that will be needed to attract this target market.
Consideration would need to be given to whether older - or younger - waiting and bar staff would significantly prejudice this aim, or whether the aim could be achieved with appropriate lighting and decoration, to the extent that the age of the staff would make no difference.
In comparison, it is unlikely that the owners could justify seeking to recruit kitchen staff between 20 and 35, as these employees would rarely, if ever, be seen in the main restaurant area. Their age would thus be unlikely to prejudice the owners' aim to attract young professionals and to create an atmosphere that would encourage this.
Long before 1 October employers should consider:
- The age of the employees who are currently on staff and those who have been employed in the past.
- The recruitment process that is followed, including whether specific age groups are targeted by requesting that applicants be of a particular age, be within an age range, or have particular amounts of experience.
Such a review would help to identify whether there is any risk of acting in a potentially discriminatory way, and thought could be given to whether the treatment could be justified. If it could not, steps could be taken to ensure that such treatment is not repeated after the legislation is in force.
Beware! The age discrimination legislation is currently in draft form, and it is possible that the remit of the legislation will change. Employers should familiarise themselves with the law that will actually be introduced. It is anticipated that this will be published in the first half of this year.
In addition to the recruitment process, age discrimination legislation will have a bearing on pay, dismissal, harassment, retirement and the provision of pensions. Its potential effect must not be underestimated.