Facts
Mr Cunningham, who was 47 at the relevant time, attended an agency for interview and was asked to complete a pre-interview questionnaire. These included irrelevant questions such as the number of children he had, his living arrangements, his age and date of birth.
He objected at the time, and asked how those questions related to the position being applied for. He then provided incorrect information on the form, stating that he was 37. He did not complete the question relating to his date of birth. At the end of the interview, Mr Cunningham was told that there were job possibilities and one in particular which suited his skill set.
A few days later, the recruiter sought to pursue the age/date of birth matter with Mr Cunningham, and told him that without information relating to his age, his application would not proceed.
Mr Cunningham complained to the Equality Officer in Ireland that he was being discriminated against on the grounds of age. It agreed, and awarded him 5,000 Euro.
Lessons to be learned
Age discrimination is unlawful throughout the entire recruitment process. As indicated in the EEF Publication, ‘Avoiding Age Discrimination: A Practical Guide to Managing a Changing Workforce’, and as illustrated by this case, employers who ask questions relating to a person's age or date of birth prior to appointment are vulnerable to an inference that this factor is relevant to their recruitment decision.
If you have not already done so, you should eliminate potentially age-discriminatory language and attitudes in your recruitment practices. Whilst asking for a date of birth on your application form is not of itself age discrimination, asking this question is dangerous. It increases the likelihood of you receiving an age discrimination claim in the first place, and of an employment tribunal more readily reaching a conclusion that you discriminated on grounds of age.
On a separate note, if you use recruitment agencies, remember that you will be jointly liable if the agency discriminates whilst acting under your instruction and within its legitimate remit. We recommend that you make clear in writing, when instructing the recruitment agency, that any recruitment process it undertakes on your behalf should not be tainted by discrimination on age or on any of the other prohibited grounds.