The age factor

Marie Attard writes:

In the light of age-discrimination laws, why are adverts specifying age still allowed in the local papers? Should the papers not be refusing to publish these adverts? Who is responsible for monitoring job vacancy adverts?

Moreover, local recruitment companies are still asking for your age when you register a job application on their website and in their adverts they get around it by asking for the ID card number which, as everyone knows, incorporates the year of birth in the last two digits.

Is it acceptable to ask for one's ID number in this case? I feel that an ID number should only be disclosed if one gets the job.

It seems rather pointless having a law if it is not enforced...

EU law on equal treatment in employment and occupation does indeed prohibit discrimination on the basis of age. This law has been adopted into Maltese law which, reflecting the position under EU law, similarly provides that it is unlawful for a person to subject another to discriminatory treatment, whether directly or indirectly, on the basis of age.

Equally, the law also prohibits discrimination on the basis of religion or religious belief, disability, sexual orientation and racial or ethnic origin. It is important to note that the law applies to cases of discrimination in relation to access to employment.

The law also covers advertising of opportunities for employment, selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotions.

So there is a clear EU rule that prohibits discrimination on the basis of age and this rule is now also part of Maltese law.

Moreover, discrimination is clearly also prohibited when it comes to advertising employment opportunities.

However, there are some exceptions.

The law, both EU and Maltese, does allow certain situations where age may be taken into account and form the basis of different treatment. This is only possible in cases that are objectively and reasonably justified.

For instance, age may be a justifiable consideration in certain types of jobs where the age factor is obviously crucial. The same applies in cases where age needs to be taken into account in order to achieve certain policy objectives in, say, employment or training and where, again, age plays a determining factor in achieving policy objectives.

In such cases, the fixing of minimum conditions of age or professional experience or seniority in service for access to employment or to certain advantages linked to employment is allowed.

So is the fixing of a maximum age for recruitment, which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

However, if age is taken into account for such purposes, the way this is done must be proportionate to achieve the desired results. It cannot be disproportionate. In other words, age must truly be a determining factor and not a pretext to keep elder people out.

Therefore, as a rule, employers cannot refuse to employ persons simply because of their age. Nor can they announce in job adverts that applicants should not be older than a certain age.

However, as explained, the law does admit exceptions as long as these are objectively and reasonably justified. And since, by definition, exceptions are not the rule, they should be used sparingly and not all the time.

Victims of age discrimination can take legal action against the employer or potential employer. The same applies if you feel you have not been given a promotion or that you have not been allowed to take part in a training or re-training exercise simply because of your age.

As to whether newspapers should carry an advert which, at face value, discriminates on the basis of age, my understanding is that it is primarily the company placing the advert that carries the responsibility at law and not the newspaper. But it would nevertheless be appropriate on the part of the authorities responsible for enforcing this law to monitor adverts to ensure the law is truly respected.

Finally, on the issue of disclosing one's ID card details, I see the point that the reader is making. However, although it is true that age can be deduced from an ID card, I do not think it is contrary to law for a recruitment agency to ask job applicants to include their ID card details. Provided, of course, the information collected is used within the limits of the law respecting the applicants' rights on data protection. In other words, the information can only be used for the purposes for which it is given and for no other reason.

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.