I am concerned about the impact of the forthcoming age legislation on younger workers. Are there any exemptions regarding age limitations for apprenticeship training? This could include a range of government initiatives and funding limited to, for example, under 24-year-olds. Also, many employers typically use undergraduates for holiday temp work. Indirectly, this is likely to limit candidates to an age range of 18 to 21.
Presumably, this method of attracting workers would become unlawful?
Apprenticeships
You may be able to objectively justify a decision not to employ an older apprentice. Generally, the age regulations prohibit age discrimination in employment and vocational training. However, discrimination can be justified if it has a “legitimate aim”, and the means of achieving it are “proportionate” in the particular circumstances. Remember to look at each case individually.
So, age-limited government funding could, perhaps, justify an employer’s decision not to offer an apprenticeship to, say, someone over 24. However, in its consultation document on the draft age regulations, the Department of Trade and Industry says that discrimination won’t be justified “merely because it may be more expensive not to discriminate”. This seems to be at odds with existing discrimination case law which makes it clear that cost can be put into the balance.
Besides cost, you may have other grounds for refusing to employ older apprentices/trainees. For example, will they be able to fulfil the need for a reasonable period of employment before retirement? You will have to show that there is such a need and that it is met by the younger staff who don’t quickly move on when training is over.
Vacational employment
You are right. Limiting holiday temp work to undergraduates (likely to be aged between 18 and 21) risks unlawful indirect age discrimination. It may be difficult to justify the discrimination. Even if you argued that the undergraduates possessed particular knowledge and skills necessary for the post, the same could apply to graduates who are likely to be older. It is advisable to open up the temporary work to all, and draft a clear person specification and job description.
Claire Reynolds, senior solicitor, Hempsons
