Publication: Personnel Today
Date: March 26, 2008
“You can’t win anything with kids”, so said Alan Hansen, BBC football pundit, in 1995. As readers may remember, events proved him badly wrong: that season 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 him to be wrong.
Last the tribunal 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? Firstly, the case reminds us that the Age Regulations are not just there to protect the elderly: they make it unlawful to discriminate against anyone, young or old, on grounds of age.
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 in play here. To dismiss Ms. 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 fulfill 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. Ms. Wilkinson’s employer should, it would appear, have thought more carefully about the requirements of the job, the skill set required of the employee, and whether an older person, or one who had more experience of the work, was really required. It should, presumably, have looked at Ms. Wilkinson, and made an assessment of how she was actually performing in the job.
However, there is a danger that in order to avoid claims an unrealistic burden will be placed upon 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 fortysomethings. 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:
Employers may be driven to laborious assessment processes to avoid the risk of being found to have acted on unjustified assumptions
