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Original poster

Could I be sued for age discrimination?

26 replies

GlitterNails · 10/08/2017 17:42

I am currently recruiting for a personal assistant/carer and am disabled.

I placed an advert, and from that offered some interviews. I was then out with a friend and she mentioned I may have trouble insuring anyone under 25 on my car (an adapted Motability car.)

I just called them to check, and they said that was the case because of the size. They then told me I shouldn't have 'chosen' that car if this would be an issue. I said I didn't choose the car - it's the only size that fits a large hoist and wheelchair.

Anyway, I then called ACAS to get advice, and asked if it would it be legal for me to email those I've offered an interview to check they're aged over 25. He told me it wouldn't be, and they could sue me for denying them a job opportunity.

The problem is driving is a large part of the role, and it has to be my car, not any old car because it's adapted for me, and obviously it fits my wheelchair.

I was really surprised as I assumed it would be a good enough justification to get around the law. He then said it might be, but I'd need to hire an employment solicitor to look at it and decide for me. I don't have the money for that. He then suggested CAB - but you have to queue for hours first thing in the morning, which I also can't do.

So I'm a little frustrated and worried now! I know they might not sue me, but it would be me personally, and I don't want to get it trouble.

Can anyone advise at all please?

OP posts:
RippleEffects · 10/08/2017 17:50

There must be a way around this! Trying to think of examples. Its like reasonable adjustments. Its not practical to adjust the role without the need for specialist transport.

You can recruit over 18's for bar work so must be able to say that as driving your vehicle has a requirement to be over 25 and this is a major part of the role, being over 25 is a requirement

AlexanderHamilton · 10/08/2017 17:54

It looks like it is discrimatiry but only if you don't shop around.

www.woodfines.co.uk/blog/too-old-drivers-insurance-age-discrimination

Deucebumps · 10/08/2017 17:54

Where I used to work as a courier, we could only employ over 21s as the insurance wouldn't cover under 21s to drive the vans. So the job advert always stated 'applicants must be over 21 for insurance purposes'. Perfectly legal as far as I was aware.

Bobbiepin · 10/08/2017 17:55

I'm not a lawyer but I think the stipulation of age as part of the job is legal. If you hired someone under the age of 25 and they couldn't be insured then they couldn't do the job. I think you need a clear distinction that driving is an essential part of the job and make sure that it is impossible rather than difficult for someone under 25 to be insured.

Original poster
GlitterNails · 10/08/2017 17:57

I can't shop around Alexander - it's a Motability car. They have their own insurance. I can't change it or the rules.

OP posts:
StealthPolarBear · 10/08/2017 18:00

Could any disability charities advise?

sycamore54321 · 10/08/2017 18:01

Do you have many applicants? If you have a rich pool to choose from, there are a number of proxies for age that can give an indication, like what year they did their GCSEs or whatever. Or specify 7 years professional experience needed. It is admirable that you are doing the right thing but really, for a one-off personal care job, I wouldn't stress too much. Don't blatantly say "over 25s only" but you could put as a condition "must have full licence and eligible to be indeed on X vehicle" and you can provide the details from the insurers if an applicant asks.

Polly99 · 10/08/2017 18:03

What you propose should be fine.
The law allows what would otherwise be classed as direct age discrimination to be 'objectively justified'. This means that if you have a good reason for the discrimination, and it is proportionate in the circumstances, it won't be unlawful.
Given that someone under 25 can't get insurance cover necessary to do the job I really don't think there is an issue here.

AlexanderHamilton · 10/08/2017 18:05

In which case i think you'd be ok. The two cases where the employers lost the tribunals were both that insurance was available just more expensive or with a different insurer.

chocolatesa · 10/08/2017 18:14

I don't think there is an issue either really, if they can't do a major part of the job if they are under 25 then they simply aren't suitable for the role.

I imagine most people will have their date of birth on their CV. Just don't interview those who are too young. As far as I know you don't have to give them a reason why they haven't been selected for interview. (And if they ask make something else up - there were other stronger candidates.)

EggysMom · 10/08/2017 18:19

As others have said, you need to let applicants know that you have just learnt that they must be over 25 for insurance purposes. You could phrase it as "given that information, do they still wish to be considered for the role".

newnamechange84 · 10/08/2017 18:29

A few years back I had a motability car that also stipulated age 25's or over. I put an appeal into motability and they overturned the rule for me as my partner at the time was much younger than me. Also take into consideration the rule that came in a few years ago about the other insured driver needing to be within five miles distance of your home address.

Original poster
GlitterNails · 10/08/2017 18:35

Reading that case I would think I'd have good enough justification because I can't swap insurers, unlike in their case where they chose to add that stipulation to the policy. So I would hope any judge wouldn't penalise me in this case!

And it does say this: (a) treating employees differently because of their age will be potentially discriminatory unless that treatment can be objectively justified.

I would hope this is objectively justified.

But it all seems to be guess work, rather than definitely okay! This is where I think the system falls down a bit. While employing my own carer is great, all the legal liability is on me when I'm not a company with HR and the ability to pay for help.

Also my interviews are set for next week, and I'd rather say it fairly soon as I don't want to waste people's mind, or reject them soon before the interview when they may have rearranged things or something.

OP posts:
Original poster
GlitterNails · 10/08/2017 18:38

Thanks everyone.

newnamechange84 - I did ask about appealing as it was a carer, but she said there was absolutely no way on my specific car.

The under 5 mile rule doesn't apply to paid carers, I did check that one as well last time.

There are currently five I have offered interviews for. There isn't a great way to tell age, some mention GCSEs, but no dates/years. The job is on Indeed, so it's a bit more informal than a full CV.

I think I'll take the gamble there is a good reason behind this. I think a judge would be a real arse to rule against me when I had no other options!

Thanks so much for all your input!

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EggysMom · 10/08/2017 18:42

There isn't a great way to tell age, some mention GCSEs, but no dates/years.

What about their career history? If they have more than seven years of jobs listed, they're probably over 25 (or left school at 16 for an apprenticeship!)

thehousethatjillbuilt · 10/08/2017 18:47

Could notability advise you? It can't be the first time one of their clients has encountered this situation.

Blankiefan · 10/08/2017 19:09

I believe you can phone citizens advice if that's easier?

wonkylegs · 10/08/2017 19:16

You can ask for a dob if they must be a certain age to do a job as an essential part I.e. Over 18 to Sell alcohol www.gov.uk/employer-preventing-discrimination/recruitment

If you have enquired with motability about changing the insurance and they have stated that it can't then get them to confirm in writing including why, this combined with driving being an essential part of the job should be enough from the government guidance.

It's about doing as much as you can to avoid discrimination but also getting people who can do the job you need.

Document the process, paperwork is your friend.

NapQueen · 10/08/2017 19:19

Could you put "job offer subject to references and meeting car insurance requirements"?

Then its "blaming" the insurance company.

Original poster
GlitterNails · 10/08/2017 19:25

thehousethatjillbuilt - I have spoken to Motability. Their advice was they wouldn't insure under 25s. I said but could I get in trouble for stipulating an age, I thought I couldn't do that.

She then said we aren't telling you to not employ under 25s. I said well driving my car is part of the job, so that's the result.

She was pretty rude and unhelpful to be honest. The policy is fine, but she said some silly things!

OP posts:
CotswoldStrife · 10/08/2017 19:42

Meh, this is a tricky one. What you are looking for is an exemption as a 'genuine occupational requirement or qualification'. Trouble is, they should really be in the job advert and not appear afterwards, that's the tricky bit.

There is a bit of guidance here
www.gov.im/media/629933/goqempguide1.pdf

but it is just guidance, not a full interpretation of the law. There is a bit of Euro case law here

www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2013/01/29/age-limits-can-be-justified-as-a-genuine-occupational-requirement-2010-01.aspx

Or more info here
www.xperthr.co.uk/employment-law-manual/age-discrimination/35378/#peninsula

www.xperthr.co.uk/employment-law-manual/age-discrimination/35378/#occupational-requirements

I'm no expert but I do think this might come under the occupational requirements banner.

Hope you have some fab candidates lined up for next week and the interviews run smoothly!

Original poster
GlitterNails · 10/08/2017 20:31

CotswoldStrife - yeah, I agree that's where I messed up. Of course I didn't know, but they could argue I should have shown. It just didn't occur to me!

Thanks so much though.

OP posts:
honeysucklejasmine · 10/08/2017 20:36

My brother has the same issue due to a similar motorbility vehicle. (it's a Renault Trafic.) He uses a care agency who only send him carers (on regular rotation) who are old enough to drive his vehicle.

Iizzyb · 10/08/2017 22:29

Hi OP this is absolutely fine to do. If you can't get insurance for legal reasons for anyone under 25 then nobody can sue you for not employing them if they are under that age. Shame the ACAS person couldn't tell you that & has caused you all this worry x

Original poster
GlitterNails · 11/08/2017 16:54

I've been through everyone I've offered an interview too, and there is only one who may be around 25, the rest are all older. The other one could be 24-26ish. So that's good that the majority will be fine anyway!

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