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12th August 2020

Be Careful when Diving in the (Considerably Large) Talent Pool

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The Manchester restaurant ‘20 Stories’ received over one thousand applications for a receptionist job within twenty-four hours of posting the role, highlighting the lack of positions available and the considerable rise in unemployment.  It is likely that such a large talent pool provides opportunities for businesses to have their pick of many highly qualified candidates; however, employers must be mindful to remain objective in their pursuit of the right person for the job.  

In such a highly competitive job market, there is the potential for employers to be placed under scrutiny for their recruitment processes, as well as their handling of existing employees in cost cutting or redundancy scenarios.  Job-seekers are currently experiencing consistent rejection and an employer should be ready to provide feedback to an applicant on the reasons why they were unsuccessful in their application. Vague or unconsidered responses may give rise to questions of unconscious bias or potential discrimination throughout the selection process.

For example, the Equality Act 2010 prevents employers from committing direct or indirect age discrimination, harassment, or victimisation because of a person’s age.  The job advertisement must be carefully constructed, avoiding direct references to age groups and discriminating by perception or association.  A requirement for a particular qualification (such as a Masters) may be seen to disadvantage a younger applicant?  

An action of direct or indirect age discrimination may be objectively justified by the employer to achieve a legitimate aim, using proportionate means.  A building construction site may only accept applications from over-18s from a health and safety perspective, if they can reliably demonstrate (through accident statistics) the role is dangerous to a younger candidate.  In auditions for acting roles, a particular age group may in fact be an occupational requirement, if the actor the casting director is seeking is profiled to match a specific character from a book or play perhaps.

Oxford University are stoic defenders of their Employer Justified Retirement Age (“EJRA”) policy, introduced in 2011 to promote younger staff while retiring professors at the age of 68 from their duties.  They were found to have acted unlawfully in their dismissal of Professor Paul Ewart, Head of Atomic and Laser Physics at the Clarendon Laboratory.  The policy was described as ‘highly discriminatory’ by the tribunal, who also stated that when dismissing solely on a particular characteristic there is ‘hardly a greater discriminatory effect’.  The policy remains in place and it is highly probable more cases will be brought in the future; the policy was accepted as lawful in the previous case of Professor John Pitcher which appears to carry an equal legal weighting on the facts.  The University is in the process of appealing the judgment in Ewart, meanwhile many Dons continue to fiercely and openly oppose the EJRA policy.

People’s decisions are likely to be prevalent in business strategy from a recruitment or redundancy perspective as the economy continues to adjust to the significant impacts of Covid-19.  It is vital that proper processes, combined with an understanding of the law are applied to each scenario to ensure a correct and proper outcome.

If any of the points raised are affecting your business, or you’d like to put measures in place, our team of solicitors would be happy to assist.  All situations are unique on the facts, so please call 01484 519 999 in the first instance to discuss.

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