After at least seven years of training, many NQs and assistants, who have found themselves unemployed due to the downturn, are finding it hard to take that next critical step in their career. One hurdle for them to face is a relative lack of years of post qualification experience (“PQE”).

A challenge for employers is that relying too heavily on PQE as a guide to suitability and competence can be problematic, both in terms of getting the best candidates and staying on the right side of the law. Indeed, using it exclusively, for example to shortlist candidates or make final selection of a candidate, could amount to unlawful, indirect age discrimination against younger lawyers.

The imminent consolidation of age and other discrimination laws under the Equality Act 2010 serves as an important reminder to those in the profession to be vigilant and to focus on competence and experience in its broadest sense, rather than relying on crude “rules of thumb” that no longer reflect best practice.

The current law

Under reg 3(1) of the Employment Equality (Age) Regulations 2006, a person (“A”) discriminates against another person (“B”) if:

• (a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or
• (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but – (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage,
• and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.

Regulation 3(1)(a) prohibits direct age discrimination, while reg 3(1)(b) prohibits indirect age discrimination. Effectively, this has been transposed into ss 5, 13 and 19 of the Equality Act 2010.

The problem

Many job advertisements typically ask for minimum or, sometimes, maximum “X years PQE”. Take, for instance, an advertisement specifying “3-4 years PQE”. If you leave school at, say, 17 years of age and train to be a solicitor in Scotland, then you cannot have achieved three years’ PQE until you are 27 years old, at the very earliest. Potentially, such an advertisement discriminates indirectly against those under the age of 27.

At the other end of the spectrum, it discourages older applicants, who may have many more years of useful experience pre- or post-qualification, gained in the legal profession or elsewhere, perhaps in business or academia. However, under the legislation, age should not be a barrier for entering the employment market. Nor should age be a determining factor in remuneration and promotion, but that discussion

is outwith the remit of this article (see, for example, Kylie Williams, “Profession-wide move to merit-based remuneration tolls death knell for PQE”, The Lawyer, 3 September 2007; www.thelawyer.com).

Employers might think to create a buffer by outsourcing recruitment to an agency, so they can advertise jobs however they please, with emphasis on PQE. But this is misguided: agencies are alive to the issues and will generally resist such an approach. And even if they do not, the employing firm can still be held liable, as principal, for the acts of the recruitment agency.

Liability could manifest itself potentially in the form of financial awards, including damages for solatium.

While the higher awards that tend to grab the headlines are made in cases of direct discrimination, claims of indirect discrimination involving the imposition of an apparently innocuous criterion (such as PQE), which has the practical effect of placing a particular age group at a disadvantage, can still prove costly and embarrassing.

Interestingly, tribunals also have the power to make specific orders against employers found liable, to introduce awareness training for recruiting managers, for example. This power is likely to be reinforced and broadened under the 2010 Act.

Creative parameters

This is not something new. Rachel Dineley, partner at Beachcroft LLP, wrote two years ago: “Despite the age legislation, firms largely continue to advertise vacancies (in particular for assistants) by reference to years of post-qualification experience (PQE). It is not difficult to see that a rigid adherence to a narrow parameter could lead to an allegation of indirect discrimination” (“Age discrimination – a clearer picture?” Managing Partner Magazine, Volume 10 Issue 9, 28 February 2008; www.mpmagazine.com).

That is not to say that agencies, employers, recruiters and HR teams are unaware of this: indeed, it is their bread and butter. And, of course, experience is entirely subjective, something determined not solely by reference to time.

Back in 2007, there was increased fear about litigation following the introduction of the regulations, and with good reason. The Republic of Ireland introduced age laws several years before the UK and, by 2007, age discrimination claims were making up nearly one third of their employment tribunal caseload.

The fears have not, to date, been borne out, whether due to apathy, ignorance or fear of reprisal on speaking out. Or perhaps employers feel they have sufficient get-out if they add “or other relevant experience”, suggesting that PQE will be taken as a general guide but not an exclusive criterion. But this practice is not adopted across the board.

The relatively new law here sparked debate between industry leaders as to whether they should continue with PQE or abolish it altogether in favour of other criteria.

For instance, in 2007, English firm Bircham Dyson Bell rejected the PQE qualifier in place of a performance-based system known as the Career Development Framework (CDF).

This comprised four levels of seniority of solicitor, associate, senior associate and partner, and was designed not just to recognise achievements and performance, but also to procure greater transparency and a more structured career path.

However, underlying these levels of seniority may be deep-seated preconceptions about years of PQE required for such seniority.

It may, then, also be worth looking outwith the legal profession. For instance, the Royal Pharmaceutical Society of Great Britain advertises jobs according to a scale of “Job Families”, “Grades” or degrees of specialism, which cross refer to a set scale of performance or specialism indicators. It is submitted that such creativity and flexibility is to be welcomed.

New for 2010

It is not suggested that PQE is abandoned altogether as a general guide. However, relying on it exclusively, or even heavily, is problematic. The key focus for any employer should be competence and ability to do the job, irrespective of a candidate’s age.

Employers and recruitment agencies may need to rethink current practice in light of the implementation of the Equality Act 2010 later this year, which should serve as a reminder that the PQE criterion should take a back seat as a differentiator, perceived or otherwise.

However, old habits are hard to kick. And only an ill-advised recruiter would admit to making decisions based mainly or even purely on PQE. In any event, it would be very difficult to prove that such a decision was based solely on number of years of PQE. As it remains, the best practice is to advertise for and look at candidates in the round including all their relevant achievements and experience, not just PQE.

The Equality Act 2010 should be viewed as a clarion call for employers and recruiters to reconsider their use of PQE in legal recruitment.

Not only should there be consideration of the legal implications, which could take the form of financial penalties, but, also, there should be the realisation that the profession may well be missing out on, hindering or indeed discriminating against potentially phenomenal candidates, both those high-flying younger lawyers and those who have experience outwith the legal profession. There should not be a risk that employment and merit are awarded based on age. To counter such risk, employers and recruiters need to reconsider their systems of recruitment and employment.

Simultaneously, solicitors and, indeed, trainee solicitors need to shed the belief that they are, or will be, only as good as the number of years they have been or will have been qualified.

Now is the time for prospective applicants in this challenging climate to avoid apathy and lack of perception by really focusing, not just on what they have learned themselves, but also on what others have experienced, such as by paying meticulous attention to the skills and experience which partners and others at the top of their profession have acquired. If they do so, their own broad experience may just land them the job they’ve always wanted!

Article from The Journal Online