Weekly dilemma: withdrawing a contract on age grounds

We recently offered a contract to an applicant for a public-facing job. That person has accepted and returned the contract and signed it. My boss has had second thoughts about employing this person as he thinks she’s too old for the job and wants to employ a younger person. Where do we stand? Can the person who has accepted the contract take action against us and what defence would we have?

I would encourage your boss to have further thoughts before telling the person who has accepted the job it is no longer available to her. By accepting the offer of employment there is now a contract of employment between you which is binding on both parties. Although she has not started work with you if your boss does not want her to start she is entitled to be given notice of termination as set out in the contract. Failure to give her proper notice would be a breach of contract. She could claim damages equal to her net pay for her notice period for her wrongful dismissal.

The possible problems arising if your boss decides not to take her on do not end there. Should she find out that the reason her contract was terminated before she started was because your boss wanted to appoint a younger woman then she is likely to claim compensation for age discrimination. It is unlawful for an employer to treat a person differently because of their age. To want a younger person because the other person is considered to be “too old for the job” would be a clear case of direct age discrimination. Compensation for age discrimination is unlimited in amount.

An employer has a defence to such a claim. If your boss could show that the reason he wanted a younger person was “objectively justified” and that the actions taken were proportionate to achieve that aim then a claim would fail. Saying a person “is too old for the job” begs the question “to old to do what?” If there is a genuine occupational requirement that a person must be a certain age (examples are to drive particular vehicles or to play a specific role in a play) then there would be no discrimination. However where (and this is often claimed in media businesses) appearance is important it will not be enough to say that the industry demands a young image. A defence seeking to justify treating people differently on this ground would not succeed.

Then again if your boss went ahead and appointed a man (whatever his age) instead of the “older woman” you could face a claim of sex discrimination as well.

Given these possibilities I would urge your boss to think carefully before he asks you to tell her the job has been withdrawn.

Roger Byard, partner and head of employment, Cripps Harries Hall

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