The warning follows guidance from the Advertising Standards Authority released last week to mark International Day of Older Persons.

Commenting on the guidance, Stephen Jennings, partner and solicitor at Tozers Solicitors, told Recruiter all advertisers – including recruiters – should ensure ads do not cause offence to older people, adding relevant factors include the tone, content and context of the ad, as well as its intended purpose.

“Any ad that could be construed as mocking the elderly is likely to cause serious and widespread offence. If the purpose of an ad is to portray the elderly in a positive manner, that should be fine – provided of course it doesn’t go to the other extreme and amount to discrimination against younger applicants of course.

“A more subtle point is that recruiters will need to ensure that their ads do not suggest indirect age discrimination e.g. through their visual imagery. Stereotypical assumptions eg. using imagery of lots of young people when advertising an IT job could be a problem. The best advice is to use representative language and imagery and, if there is a focus on an older person, ensure it is positive (or at least neutral) and doesn’t perpetuate stereotypes.”

Meanwhile Kathryn Dooks, an employment partner at law firm Kemp Little, says recruiters to need to be careful about the language they use, to avoid claims of age discrimination. 

“Adverts which seek ‘youthful’ or ‘dynamic’ team members could be seen as excluding older applicants. Likewise, asking for applicants’ dates of birth (or even the dates of their schooling/degree) are difficult to justify. In addition, the employer must not ask for information about a candidate’s health until the candidate has been offered the job, except in very limited circumstances.”

Dooks adds to avoid liability, recruiters should also demonstrate that any potentially discriminatory words used are justifiable as a “proportionate means of achieving a legitimate aim”. 

“So certain employers may be able to specify maximum age requirements for particular roles, where these are justifiable – for example, because of fitness levels and the demands of the job (although I note that the Fire Service’s website states that there is ‘currently no upper age limit’ to apply to be a firefighter).

“Employers should also be aware of the ‘optics’ of images on their website, especially the recruitment pages. If the images only show younger employees, or employees from a particular ethnic background, this may well put off candidates from other backgrounds and ages.”

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