It was recently reported that a job candidate applying to work at a Domino’s Pizza franchise has received £4,250 and an apology from the franchise owner after being asked her age during an interview.
Case background
Ms Walsh applied for a delivery driver role at a Domino’s Pizza franchise in Northern Ireland. To her surprise, the first question she was asked by a panel during her interview was how old she was. Ms Walsh reported that the interviewer wrote drown her age on a piece of paper, circled it, and commented, “you don’t look it.”
Ms Walsh was subsequently turned down for the delivery driver role and sought to pursue a discrimination claim on the grounds that her age had been a factor in the decision not to offer her the role. Ms Walsh was supported by the Equality Commission in doing so.
Ms Walsh commented that being told she had not been successful in applying for the role was a “penny-dropping moment that will always stay with [her]”. Ms Walsh said she felt a “loss” and a realisation that the “world was going to be different because of [her] age”, including in terms of the opportunities available to her.
In response, the interview panel said that they were unaware it was inappropriate to ask someone their age. Domino’s Pizza has since confirmed that the franchise is under new management and issued a statement explaining that the organisation prides itself on inclusivity and having a diverse workforce.
The law
The Equality Act 2010 (“EqA”) protects against discrimination and other prohibited conduct in the workplace relating to certain ‘protected characteristics’, including a person’s age. Where age is concerned, the EqA seeks to guard and protect against:
- Less favourable treatment because of age (or perceived age);
- Application of a provision, criterion, or practice (for example, a policy) that puts a group at a particular disadvantage because of age;
- Harassment related to age (even if the unwanted conduct does not relate to the age of the complainant); and
- Victimisation (for example, being subject to a detriment or dismissed following speaking up about discrimination on grounds of age).
The protected characteristic of age in particular lends itself to stereotyping and affects both younger and older generations. Discrimination on grounds of age can take place at various stages of the employment life cycle including, but not limited to, during recruitment, selection, and onboarding processes, in performance management and promotion decisions, on termination of employment, and even after termination of employment. The EqA protection extends further than just to those in employment and covers job applicants.
There are certain defences to age discrimination i.e. where different treatment because of age may be lawful, for example:
- If a person must be of a certain age to perform a role pursuant to a legal requirement;
- If it can be shown that there is an occupational requirement that a person is of a particular age in order to undertake work of a particular kind and that requirement is a proportionate means of achieving a legitimate aim; or
- If an employer takes positive action to enable or encourage persons in a particular age group to overcome or minimise a disadvantage arising as a result of being in that age group, to meet the particular needs of those in that age group, or to enable or encourage persons in that age group to participate in an activity.
However, these are very much exceptions to the general rule that discrimination in the workplace in any form is unacceptable.
Recruitment – top tips
As in Ms Walsh’s case, a person’s age will usually be irrelevant to their ability to undertake the role in question.
Below we set out general steps that can be taken in an effort to minimise and hopefully eliminate discrimination during recruitment and selection.
- Ensure that staff with recruitment responsibility (as well as the workforce generally) receive equality and diversity training and provide refresher training in order to avoid situations such as in Ms Walsh’s case, where the panel was completely none the wiser that they were not supposed to ask questions relating to age at interview.Acas and the Equality and Human Rights Commission (“EHRC”) have published guidance on recruitment, which staff should be familiar with. The EHRC Employment Statutory Code of Practice contains a number of best practice recommendations and is a document that is considered by Employment Tribunals when deciding whether a claim of this nature should succeed.It is a possible defence to vicarious liability if an employer can demonstrate that they took all reasonable steps to prevent an employee from committing the discriminatory act complained of. Whilst providing training to staff will not necessarily mean this defence is proven, it will certainly support this argument.
- Arrange for more than one person to be involved in recruitment decision-making processes. As humans, we have unconscious biases. Having more than one person making decisions helps to remove any biases.
- Prepare properly for interviews. Each applicant should be given the same opportunity in an interview to demonstrate their suitability for the role in question. Structuring interviews and agreeing on a standard form of questioning (with the majority of those questions being open-ended) will reduce the risk of potentially inappropriate personal conversations and ensure so far as possible that applicants are on a level playing field.
- Make decisions based on pre-agreed and objective selection criteria focused on the experience and skill of the applicant and relevant to the nature of the role being applied for. If it helps, personal details or details gathered as part of equal opportunities monitoring can be removed from the interviewer’s (or interviewing panel’s) pack of documents before them when deciding who to offer a job to.
- Keep a paper trail! Notes should be kept on interview discussions, scoring processes, and the reasoning behind decisions. In the event an applicant does allege that their non-appointment to the role was tainted with discrimination, notes such as these will form vital evidence in defending that allegation.
Comment
Given there has been a huge surge in recruitment post-pandemic, this case is a useful and timely reminder that the discrimination protections provided under the EqA extend to job applicants as well as those in employment.
Age is a sensitive matter for many and this case shows the impact that discriminatory treatment (even if unintended) can have.
How can we help?
Getting it wrong can be expensive as discrimination claims attract uncapped compensation. Please do not hesitate to get in touch with a member of our expert Employment Law team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form if you require any assistance in relation to the subjects discussed in this article.
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