Looking for ‘experienced’ staff could lead to age discrimination tribunal

“You can’t win anything with kids”, Alan Hansen, BBC football pundit, famously announced before Manchester United’s “kids” went on to win the Premier League and FA Cup double. Thirteen years on, an employment tribunal in Newcastle-upon-Tyne has shown that it, too, believes Hansen to be wrong.

Last month it ruled in favour of Leanne Wilkinson, an 18-year-old who was dismissed from her job as an administrative assistant because she was too young and inexperienced. She complained that she had been discriminated on grounds of her age under the Employment Equality (Age) Regulations 2006.

What does the case tell us? It reminds us that the age regulations are not just there to protect older people – they make it unlawful to discriminate against anyone, young or old, on grounds of age.

But the real interest lies in the implications for employers in assessing the aptitude of employees (or candidates) for a job. At the heart of the tribunal’s decision was its finding that the company had based its decision on a “stereotypical assumption that capability equals experience and experience equals older age”.

Two different, but interrelated, forms of discrimination were in play here. To dismiss Wilkinson because she is too young is direct discrimination. To dismiss her because she lacks experience is potentially indirect discrimination: the requirement that she has a certain level of experience is harder for her to fulfil than an older person. Either form of discrimination can be justified, on the grounds that the discriminatory treatment is a proportionate means of achieving a legitimate aim.

It is a fair point, in principle, that we should not treat people less favourably than others because of stereotypical assumptions about them. However, there is a danger that, to avoid claims, an unrealistic burden will be placed on employers to collect and evaluate objective evidence before making any decision.

Is the correlation between experience and capability really an unjustified stereotype? In many cases experience does count for a lot. We all learn as we go along: from our successes and our failures. In my job experience has always been regarded as a key indicator of a certain level of expertise: the legal profession has always attached weight to post-qualification experience. In asking for a barrister of, say, 1992 qualification, the client is unlikely to be doing so because that was a good year, or because he has a penchant for 40-somethings. He uses post-qualification experience as shorthand for capability.

Of course, there may be people who do a job for years, and never get the hang of it. There may be jobs (and administrative assistant may be one) where little experience is needed to learn the ropes. Often, however, experience is a reliable shorthand for a certain level of capability. Why shouldn’t an advertisement require a certain number of years’ experience, if it is a safe bet that without those years experience, a candidate would be unlikely to be able to do the job?

If the use of “shorthand” such as an experience requirement is not permissible, employers may have to carry out a laborious process of individual assessment of every single candidate’s aptitude for the job to avoid the risk of a claim. That process will be not only expensive, but also time-consuming. They may come to exactly the same decision as if they had applied an experience “threshold”.

Fine in an ideal world – in the real world we may all grow old while we are waiting.

Key points

  • Age discrimination laws protect both the young and old from discrimination
  • Discrimination can be justified if it is a proportionate means of achieving a legitimate aim
  • The test of justification is vague, and difficult to predict
  • Employers should avoid stereotypical assumptions as to the impact of age and experience on ability
  • Employers may be driven to laborious assessment processes to avoid the risk of being found to have acted on unjustified assumptions

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