Blog: Age is just a number: the risk of making assumptions about age in recruitment

It’s me (Philip Pearson-Batt). Hi. I’m the lawyer its me.

Welcome to my latest bloggings. We start with my personal life and well, any number of exciting things have happened in my personal life recently.

Most importantly, my husband Paul & I recently celebrated our second wedding anniversary. It was a quiet but lovely affair. But does anybody else find the traditional themed gifts difficult? Cotton wasn’t too bad this year: I got him a Wimbledon towel (still after getting him tickets to Wimbledon if anybody can help?!) and he got me a tote bag with a map of our wedding venue (I do love a tote bag). But it’s leather next year… ooo matron!

Then, for those who haven’t seen, I’ve finally had my trip to the Eras tour (Taylor Swift for those who don’t know). If we’ve spoken since, I’ve probably rambled about how I am now in full blown Swifty territory but the woman has hit after hit after hit and was on stage for 3 and a half hours with like a 5 minute break. How?! I can barely walk the dog. We were incredibly lucky and had extra bonus Swifty-ness in the form of Jack Antonoff (if you know you know) plus Florence Welch.

If you want to know my highlights they are as follows. For songs: You Need to Calm Down (screaming “shade never made anybody less gay” with 90,000 other people!?) and All Too Well (who has a 10-minute song that gets better and better and everybody knows the words to? Plus, screaming “f**k the patriarchy” with 90,000 other people!?) For Era: 1989. I dare you to find me a bad song on that album. All in all, 10/10, would recommend.

Lastly, we’ve finally got round to booking our winter trip and I shall be living my best Von Trapp life as we are going to Austria in November. A night or two in Salzburg and a night or two in Vienna. As always, if anybody has tips or recommendations, they will be very much welcomed.

But, unlike Liesel and Rolf employers can get into tricky water talking about age (in show-biz, they call this a top quality segway) and issues with age in recruitment processes really does seem to be something that is causing issues across most sectors and industries.

In fact, studies show that age discrimination in recruitment is rife

Recent studies have shown, for example, that 36% of Gen Z (those born between 1997 and 2012) workers believe they have experienced discrimination during a recruitment process and that 21% believed this was to do with age.

A lot of this is to do with making assumptions and stereotypes and, actually, that is something that can have a massive impact on anybody of any age.

A recent Tribunal case provides a perfect example of this

Take, for example, the recent case of Cubbin v Age UK (https://assets.publishing.service.gov.uk/media/66b1e1abfc8e12ac3edb0adc/Mr_Alexander_Martin_Cubbin_v_Age_UK_-_2210200-2023_-_Reasons.pdf), where Age UK were found to have committed acts of age related harassment against the Claimant and were ordered to pay ￡4,000 as injury to feelings compensation as a result.

In this case the Claimant applied to Age UK for a Brand Asset Designer role. The charity were part of the government’s Disability Confident scheme which meant that any job applicant who had a disability and who met the relevant job requirements should have been guaranteed an interview. The Claimant confirmed in his application that he had experience relevant to the role and that he had OCD, autism and depression. Despite this, he was not invited for interview.

Unfortunately, there was a technical error that meant the Claimant’s application was disregarded and was not provided to the relevant hiring managers. The Claimant complained and the error was identified. The charity apologised but explained that, because the role had already been filled, they couldn’t offer him an interview.

The charity then took it upon itself to retrospectively review the Claimant’s application against the 10 essential criteria that they had set out for the role. This review identified issues against each of the 10 criteria and found that the Claimant wouldn’t have been eligible for an interview under the Disability Confident Scheme in any event.

The Claimant made a data subject access request (DSAR) and got hold of a copy of the hiring manager’s report into the review. He found the contents of that report to be “disrespectful”? and “humiliating” and he tried to raise a grievance, alleging that his age had impacted the charity’s decision. The charity denied this, saying that a third of its workforce were over the age of 55 (the Claimant was 58). Unsatisfied with this response, the Claimant brought claims in the Employment Tribunal, including a claim for age related harassment.

The focus at Tribunal was whether the charity’s treatment of the Claimant after his application had originally been rejected constituted harassment. In other words, did the review and comments made as part of the review constitute unwanted conduct related to the Claimant’s age that had the purpose or effect of violating his dignity or creating a hostile, intimidating, humiliating or otherwise offensive environment for him?

One of the 10 key criteria required for the role was for candidates to show exceptional creative layout and typographical ability. As part of the retrospective review undertaken by the charity, it was found that the standard in this area displayed by the Claimant did not reflect 40 years’ experience. However, nowhere in the job specification did it require candidates for the role to provide examples of work which matched particular levels of experience.

The ET found that by imposing levels of competency to match perceived levels of experience, the charity had imposed a higher ‘must have’ on the Claimant than was actually required for the role. The ET felt this ultimately happened because the reviewer was trying to clear up the mess that the technical error had originally created. The ET did not believe this would have been said of a candidate with five years’ experience and held that this was directly related to the Claimant’s age. The ET also found that the conduct did reasonably have the effect described in the Equality Act 2010, such that the comments and requirement amounted to harassment.

What can employers take away from this case?

There are a lot of takeaways from this case:

1.??? Obviously, the big one is not to make assumptions about age (or, really, any other protected characteristics). Be mindful of unconscious bias and try to factor that out of employment-related decisions, whether that’s as part of a recruitment process or at any other stage during the employment relationship. Make decisions based on the person in front of you and the verifiable and objective facts that you can get your hands on.

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2.??? Sometimes, less is more. As the ET made really really clear, if Age UK had simply accepted their administrative error and then not tried to prove the Claimant wouldn’t have got the job anyway, they would have avoided making assumptions about his age and they would have avoided harassing him on the grounds of age. The ET explained that the Charity “could simply have apologised for the original mistake.” ?Instead, the charity was found to have “embarked on a self-serving exercise of shutting the stable door after the horse had bolted”. This was ultimately their undoing.

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3.??? Be mindful of what you are committing to paper. Remember anything put in writing (including handwritten notes, types notes, internal emails, text messages, WhatsApp’s or Teams messages) and relevant to a case which isn’t protected by legal privilege (this is when a solicitor is involved) is likely to be disclosable either as part of a Subject Access Request or in Tribunal proceedings. Even the most innocent or throwaway of comments can make or break a case.

How can Precept help?

As if you have to ask! If you find yourself dealing with a thorny recruitment issue then we can help. We’ve masses of experience of advising on these sort of scenarios. Plus, you may have seen, we’ve actually got a completely free training session coming up on recruitment issues (which will include the Precept Player’s mock interview which will show you exactly what you shouldn’t be doing at interview). That event is in November and if you want to sign up now, you can here.