Age discrimination when you apply for a job is unlawful under the Equality Act.
When advertising a job role, employers can’t include age limits, and should avoid using words which could suggest they are looking for applicants from a particular age group – for example, by using terms such as ‘10 years’ experience’, ‘enthusiastic young people’ or ‘ recent graduates’.
They can ask for your date of birth – for example, to check you are over 18 if necessary, or to see whether they are attracting a wide range of candidates – but they should keep this separate from the application and must not use it as a deciding factor in whether to give you the job.
Agency workers now have the same rights as permanent employees in terms of protection from discrimination. Agencies must not discriminate against you because of your age. For example, they can’t deny you access to their services or to particular job placements based on your age.
Questions about your health
You should not be asked about your health or any disability you might have during the recruitment process, except in very limited circumstances. Those circumstances are:
- when you have been given a job offer
- when you are part of a pool of successful candidates who will be offered a job when one becomes available
- when the employer needs to know if you have health or disability related requirements for the selection process
- when the employer wants to monitor diversity among applicants.
Aside from the exceptions above, you should not be asked a health or disability question in the application or during an interview, nor should you be asked to fill in a health questionnaire before a job has been offered to you. Questions that relate to your sickness absence in any previous jobs count as questions relating to health or disability too.
However, during the application process you may be asked to fill in a monitoring form which asks if you have a disability. This should be kept separate from your application and should not be used as part of the recruitment decision.
Once a job offer has been made, the employer could ask questions to make sure your health or disability won’t stop you from being able to do an ‘intrinsic’ part of the job, eg. heavy lifting.
Positive action refers to the steps that an employer can take to encourage people from disadvantaged groups to apply for jobs. For example, if an employer finds that older people are underrepresented in their workplace, they can state in recruitment adverts that older people are welcome to apply. They could do the same if they found that other people with a protected characteristic were underrepresented among their employees, such as women.
This isn’t the same as positive discrimination, which is not allowed in equality law. An example of positive discrimination would be where an employer decides to only accept applications from older candidates, even though the job could be done equally well by a younger person. This would not be lawful.
Employers don’t have to take positive action, it’s up to them if they choose to do so. Either way, an employer must always offer the job to the best candidate, even if they don’t have the particular protected characteristic that the employer was seeking to target.
Where two job applicants are both equally able to do the job, the employer can base their decision on positive action to improve the diversity of their workplace. The rules for doing this are quite strict and the employer must be able to show that the candidates were equally qualified.