Can an employer ask candidates for their date of birth under the new age legislation? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills and Reeve, give the legal outlook.

The question:
“We employ several hundred temporary staff during the summer months. Due to the nature of our industry the majority of them are in the 18-24 age group. Our application form asks for date of birth. We need this information to a) ensure we don’t employ anyone who is underage, b) to assist in working out minimum wage entitlements. Can we continue to ask for this information?”

John Gardiner

The answers:
Esther Smith, partner, Thomas Eggar
I have absolutely no problem with requesting someone’s date of birth as, as you rightly say, there are very good reasons for needing it such as complying with minimum wage requirements and other statutory provisions. Indeed, under the age discrimination legislation an employer needs to know when an employee’s 65th birthday is in order to comply with the procedures covering retirement!

The one thing you do need to be cautious of, however, is that the information as to date of birth, and therefore age, is not being used in the decision making process when offering employment. If there is a danger of this, it may be better to collect information such as date of birth once an offer of employment has been made. This could be done by requesting details to be inserted on an acceptance form or letter, rather than in the application form. That way, individuals cannot claim to have been treated less favourably than other candidates.

If you have a culture of ‘young’ people working for you on a seasonal basis, this may arise as a result of discrimination occurring at the interview or recruitment stage, so removing the date of birth from application forms may help. Alternatively, it may be because you are advertising or recruiting within publications or mediums that are more widely referred to by people in that age group. This could also give rise to age discrimination issues so you may need to look carefully at how you recruit people to these jobs.

Esther can be contacted at: clairec@midnight.co.uk

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve

John, for the reasons you give I see no difficulty in justifying your request for dates of birth. In some cases commentators have argued that merely asking for birth dates in some way implies discrimination. This I feel goes too far. Clearly if you only employ ‘young’ people and you ask for birth dates then there mat be an inference that you are asking for birth dates in order to avoid employing anyone over a certain age perhaps because that age profile fits in with the company image etc.

Clearly that would be age discrimination. However, you have perfectly legitimate reasons for asking for birth dates so that this negative inference could be dispelled if necessary.

One issue you have is how to go about obtaining this information. I don’t agree that this is best done on the application form since that can lead to the inference that birth date is a factor which you are using to determine who to offer jobs to.

The better approach is to have a form to fill in after appointment to the job along with other required information (next of kin, contact details etc.) and include a note which says that the information is gathered only to ensure correct payments are made and will not be used for any other purpose.

Martin can be contacted at: martin.brewer@mills-reeve.com

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