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Ask the Expert: Does my job advert fall foul of age discrimination law?

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Question:
 
Would the wording on a job advert saying something like "at least five years’ experience required in process flow technology" be discriminatory? I think it might fall foul of age discrimination law as it excludes some people because of their age. Is that correct and, if so, what would be permissible in these circumstances?
 
Answer from Esther Smith, partner at Thomas Eggar LLP:
 
You are right that such a stipulation in a job advert could give rise to an argument of age discrimination – clearly to be able to demonstrate that you have had five years’ experience you would need to be over a certain age and this might therefore disadvantage younger applicants.
 
In legal terms this would be an example of indirect age discrimination and would therefore be something that the company could try to justify, were a tribunal to find that it was age discriminatory.  However, it could be quite tricky to justify why asking for a specified number of years’ experience was “a proportionate means of achieving a legitimate aim”, to use the terminology.
 
In practical terms this makes sense too – you may end up with an application for the job who has repeated one year’s bad experience in the specified area five times over, and overlook a candidate who has been doing the job excellently for only  one or two years!  Experience of the job may be necessary but you may be missing out on good candidates if you are prescriptive about how long that experience must be!
 

3 Responses

  1. Why would you want to get away with it?

     As the expert advises, a repetitive 5yrs ensures stale skills in comparison to a year of innovative development. My most entertaining moment was the ad specifiying 5yrs of Java when Sun had only released the software development kit 3yrs earlier!

    As a triple-grad with many years of unsuccessful job interviews behind me, it is worthy of note that only once was there a competency exam (Unfortunately my referee white-anted me after obtaining the winning rank/score – c’est la vie!). Interviewing managers usually didn’t really know what they wanted. 5 Years of .…….. sets off alarm bells that I’ll be working for living proof of the Peter Principle.

  2. age discrimination

    This might also be indirect discrimination against women. It depends upon the type of work etc but if women have been unable to gain the 5 years work experience because they have been caring for children; they too may have a claim for indirect discrimination. (This could apply to any protected characteristic).

    If you can justify experience as being a necessary requirement, then simply refer to it as such; if not, say it is desirable.

     

  3. Non Subjective advertisements

    Hi

    It might be more helpful to get the managers to concentrate on what skills are required in the the job and to what level of knowledge and competance they are looking for these to be performed.  This will also help frame any interview questions or assessments that are needed.

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