Abstract
This dissertation discusses the rationale for age discrimination legislation, examining both evidence of age discrimination and incentives for employers to discriminate based on age. Questions concerning the justification for and effectiveness of age discrimination legislation are likely to become progressively more significant in light of a rapidly aging population in the United Kingdom, and an often misunderstood and victimized youth. This dissertation presents a summary, critical review, and synthesis of age discrimination legislation. At the outset, it traces out the background of age discrimination and discusses implementation of the new law. It then reviews the existing research on age discrimination in relation to younger and older workers- research which addresses the rationale of legislation, its effectiveness and criticisms. Finally, it looks for answers from the United States and draws a conclusion.
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In writing this dissertation it was found that empirical tests and certainly commentary on age discrimination were far less numerous, more varied and sometimes less direct than those relating to race or gender discrimination. Neumark believes that there are two reasons for this: research on age discrimination had and continues to have less urgency, because older groups generally do not suffer the sizable pay differences associated with gender and unemployment rate disparities, and; regression-based empirical methods for gender and race are not thought to affect productivity as with age discrimination.[1]
Introduction
Discrimination: Treatment and Equality
Unfair discrimination takes several forms, some more invidious than others. Fortunately, the Framework Directive forbids both direct and indirect forms of discrimination. Direct discrimination arises, for example, where due to the victim’s gender, age, ethnicity, disability or sexual orientation, that individual would not be treated with the same opportunities and benefits as another individual in comparable situations. In other words, direct discrimination is where an individual is treated less favourably on a forbidden ground, such as age, than another person would be treated. Indirect discrimination on the other hand, occurs where a seemingly neutral practice or rule puts individuals of a particular age, for example, at a specific disadvantage compared with other individuals, and where it is not objectively justifiable. On this basis, two central components relating to discrimination emerge: treatment and equality.
The treatment component suggests that discrimination is often due to the failure to treat a person as an individual:
The point is not always appreciated by those who write about discrimination, perhaps particularly by those writers who lack personal experience of discrimination. To them it is a puzzle that the remedy for discrimination is seen politically as a matter of groups rather than individuals, for in the traditional debates of liberalism, the wrongs of inequality of opportunity, for instance, are wrongs done to individuals and the remedies are equally atomistic. But discrimination has displaced simple injustice in the language of social and political oppression precisely where it transcends the individualism of traditional liberal values and acknowledges that group-related wrongs are in issue … The issues here are often obscured by the valid assertion that discrimination is what it is in virtue of treating someone as a member of a group rather than as an individual. In contrast, in allocative situations the proper thing to do is to allocate by the merit, ability, need, capacity of the individual concerned rather than on the basis of average (or stereotyped) properties of members of that group … In this sense discrimination is the failure to individuate, that is to treat on an individual basis.[2]
Nonetheless, it is the principle of equality which underpins anti-discrimination legislation. Bernard Williams propounds the idea that the central ethical basis of discrimination seems to be that even though human beings may be unequal in their skill, intelligence, strength or virtue, ‘it is their common humanity that constitutes their equality.’[3] All of us share common humanity and are entitled to be considered equally on the grounds of individual merit rather than on the grounds of group stereotypes or suppositions. Nowadays, this is not simply a moral idea but it is also an economic and social necessity.[4] Furthermore, the demands of our modern technologically progressive society for a skilled and working population imply that it is not only unfair but economically damaging to discriminate unduly on the grounds of generalisations and stereotypes. This point was expressed succinctly be Andrew Smith MP, the Minister for Employment, Welfare to Work and Equal Opportunities:
To base employment decisions on pre-conceived ideas about age, rather than on skills and abilities, is to waste the talents of a large part of the population. In ten years time, for example, more than a quarter of the workforce will be aged over fifty. This is a huge resource- for businesses and for the country- which could be wasted unless we tackle the way stereotypes based on age wrongly exclude people from jobs and training. It is a resource that we cannot afford to waste.[5]
Age Discrimination
The Age Discrimination in Employment regulations, taking effect in 2006 will make discrimination on the grounds of employment unlawful. Currently, however, discrimination on the grounds of age is not unlawful in the United Kingdom, insofar as it does not amount to discrimination on other grounds, for example sex discrimination. In Secretary of State v Rutherford, for example, a man, who was aged 67, was dismissed by his employers on redundancy grounds.[6] Any person older than 65 years, in conjunction with Sections 109 and 156 of the Employment Rights Act is not entitled to redundancy payment. In the Employment Tribunal’s opinion, a higher proportion of males worked beyond retirement age than women, therefore, the legislation was seen to be discriminatory against men. Although the judgement was reversed, the case clearly illustrates the relationship between age and sex.
Preceding the 1997 general election, the Labour Party was faithful to age discrimination legislation. However, following the General Election, it was decided that a non-statutory route was more favourable. It was thought that ‘on balance, there was no consensus of opinion on legislation and a strong case for legislation was not made during the consultation.’[7] Thus, following a consultation, the Government introduced the Code of Practice on Age Diversity on Employment in 1999, rather than legislation on age discrimination. This tactic was a failure, as the following survey suggests.
A survey was conducted in 2000 on the Code of Practice on Age Diversity in Employment. Of 800 companies interviewed in a Department for Education and Employment survey, only 1% introduced a change as a direct result of the Code of Practice on Age Diversity in Employment and just 4% believed that a future change was likely.[8] Two thirds, 68%, of the respondents believed that a future change linked to the Code was unlikely, with a quarter, 27%, uncertain as to whether they will introduce the change or not. The main reason given for no change was the credence that their company practice and policy already meets the guidelines. The survey intended to cover a cross section of randomly selected employers, with results weighted to imitate the profile of companies in Great Britain. When asked directly about the Code, 29% of companies were aware of the Code, with awareness being notably higher in large companies, where 60% were aware of it. Nonetheless, only a quarter, 23%, who knew of the Code had actually seen a copy of it. In one survey, 86% of all respondents favoured a statutory approach to age discrimination in employment, compared with 13% preferring a voluntary one.[9]
Gender and race discrimination have been the principal focus of researchers studying discrimination and are thus by far the most vociferously debated. Nevertheless, a comprehensive analysis and understanding of age discrimination is crucial. The simplest definition of age discrimination, which highlights much of the empirical work on race and gender discrimination, is aversion on the part of employers for hiring from precise subgroups of the population, as in the Becker employer discrimination model.[10] Neumark believes that such ‘discriminatory tastes are most easily interpreted as based on animus.’[11] He also states that discrimination may be based on ‘incorrect stereotypes,’ which cause employers to treat employees differently, for instance due to age; a feature which is isolated from productivity or costs.[12] That said, Neumark recognises differential treatment based on age for reasons other than animus or stereotypes, but warns that interpreting whether such treatment is discriminatory is notoriously complex.[13] The tension lies in distinguishing between differential treatment based on age and factors that happen to be related to age but are not necessarily driven by age related considerations per se.
The Government’s consultation document failed to sufficiently define age discrimination; it simply stated:
It is hard to define age discrimination succinctly. The consultation made it clear that there can be both direct and indirect forms of age discrimination in employment. The most obvious forms are where people held strong, stereotypical views about a person’s capabilities to do a job or to be developed because of their age.[14]
There is an inherent difficulty with arriving at an acceptable definition because the concept of discrimination implies that there is a discrete group who are being discriminated against, yet, in the context of age discrimination, ‘everyone has some age.’[15] In other words, to define age discrimination in terms of discrimination on the basis of age is unacceptable, because it identifies the discrete group as the entire population. The Government’s consultation document does not define these distinct groups but speaks of discrimination as it affects large numbers of workers. As Sargeant notes, the mistake with this approach is that it fails to recognize solutions which might be age specific, for example, the solutions for discrimination against younger workers might be different to the discrimination against older workers.[16] A comparative analysis of age discrimination in the European Community offers the following definition:
Direct discrimination: measures targeted at older workers based solely on grounds of age, and no other factors, such as abilities or health. These measures use specific age limits to exclude older workers from, for example, training and employment schemes, or from applying for jobs … Indirect discrimination: measures which are not directly age-specific, but which have disproportionately negative impact on older workers, compared with other age groups. This hidden discrimination usually has the most widespread negative impact on older workers in employment.[17]
However, age discrimination does not take place simply in relation to older workers; it also takes place in relation to younger workers also, as the following discussion will demosatrate.
Main Body
The New Law
The age component of the European Employment Framework Directive is to be implemented by the United Kingdom Government in October 2006. Consultation was resolved in October 2003. The Regulations are intended to afford protection for a number of different categories: people who are working (including agency workers and self employed workers); work applicants; people undertaking for or applying for employment training; people undertaking or applying for further education or higher education courses; members, or applicants for membership, of trade unions or a trade or professional bodies. The protection will apply to both direct and indirect discrimination, including victimisation and harassment.
The current state of the transposition of the age discrimination provisions vary from member state to member state. Some member states, including the United Kingdom, have utilised a delay in transposition, taking advantage of the provision outlined in Article 18. The United Kingdom government has taken an approach that includes both detailed consultation and active awareness raising; which is welcome. It is also reviewing wider equality issues and has sought a delay to enable it to embark on this work. For this reason, there is considerable uncertainty over the detail of the age legislation because it is not known how the government will implement Article 6 of the Directive
Article 1 Equal Treatment and Employment and Occupation Directive, provides that the purpose is to provide a general framework for combating discrimination in relation to a number of grounds including age.[18] The Directive does, however, cover a number of other areas besides age. The Preamble refers to equal treatment and the right to equality before the law and protection against discrimination, as recognised by the UN and ILO declarations.
Article 3 informs that Article 1 will apply in relation to conditions such as access to employment, access to vocational training, employment and working conditions and membership of employers’ or workers’ organisations. Article 4 permits the discretion that a difference of treatment may be justified where there is a ‘genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
Article 6 refers to justifications in differences of treatment due to age. It follows that differences in treatment may be justified if ‘they are objectively and responsibly justified by a legitimate aim including legitimate employment policy, labour market and vocational treatment.’ Examples of such differences were provided as: where there are special conditions for access to employment and training, including dismissal and remuneration for young people, older workers and persons with caring responsibilities in order to promote their integration into the workforce; fixing minimum conditions of age, professional experience or seniority for access to employment or certain advantages that are linked; fixing a maximum age limit for recruitment which is based either on the training requirements of the post, or the need for a reasonable period before retirement.
In order to set in context the problem of age discrimination and therefore the benefits of the new legislation, it is necessary to refer to statistical evidence. One in four people in their fifties and sixties report that they have experienced discrimination in work or when applying for a job[19] and one in five people are discouraged from applying for a job due to ageist recruitment advertisements.[20] In addition, almost a million people over fifty who would like to work are not working.[21] The Government estimates that the economy will benefit by over £1 billion during the first twenty years with the new age legislation.[22] Similar figures are mirrored in an interview of 150 people, where 78% of older workers, who had been victims of ageism, said that the experience continued to stay with them and ‘scar’ their lives.[23] The same survey revealed that 71% found that ageism effected their mental wellbeing, with one in three believing that it had affected their marriage.
The delay in transposition of the Directive, in terms of the United Kingdom government, was taken in order to enable it to conduct consultation and awareness- raising. In this respect, AGE has called upon the member states to establish an independent body with powers to promote awareness and ensure compliance on age. The Directive does not make such a provision but it is undoubtedly important for employers to receive advice and guidance. The United Kingdom government has created an advisory group on the Directive, from a range of stakeholders and a taskforce on the creation of the Equality and Human Rights Commission. These bodies intend to compliment the government’s Age Positive Campaign, to promote positive attitudes amongst employers.
BT has welcomed the new legislation, already instigating a proactive approach to employing older workers:
A work environment that actively supports all our employees is central to BT’s culture, and equality of opportunity- regardless of gender, race, sexual orientation, disability or age- is championed throughout the company … Encouraging diversity and developing an inclusive culture is vital to our strategy of creating customer-focused business … Promoting diversity and inclusion is for us a way of establishing a meritocracy within the company and is a means of ensuring that we have the right people in the right jobs. In many ways our commitment to diversity and equal opportunities has gone beyond the business case.[24]
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It has introduced a portfolio of flexible options to support a decade of retirement for its employees and this has seen an increase in its proportion of employees aged over 50 from 13% to 24% in three years.[25] If this is an indication of support by employers about the new legislation, it is to be welcomed.[26] Such rapid and early changes are highly advantageous to employers, since they can gain a comprehensive insight of the laws in advance and are thus more likely to avoid claims of age discrimination and associated costs.
Certainly, the United Kingdom, along with other industrialized countries, has a rapidly ageing population. Therefore, age discrimination legislation will become increasingly more important. In 1971, half of the population was aged under 34.1 years,[27] with the median age rising to 38.4 years in 2003.[28] This is owing to declines in both fertility rates and mortality rates, for example, between 1971 and 2003, the number of under-16s fell by 18% while the number of people aged 65 and over rose by 28%.[29] [30] Continued population ageing is inevitable during the first half of this century, since the number of elderly people will rise, as the relatively large numbers of people born after the Second World War and during the 1960s baby boom became older.[31] Indeed, projections suggest that the number of people aged 65 and over will exceed the numbers aged 16 from 2013. [32] Furthermore, the working age population will also fall in size as the baby-boomers move into retirement and since relatively small numbers of people have been born since mid- 1970s.[33] Another report, by the Organisation for Economic Cooperation and Development claimed that if nothing is done soon, standards will fall.[34] This is one demographic argument in favour of the new legislation: there is a need to retain older workers in the workforce, because there will be a reduction in the number of young people entering it. The other demographic argument is to raise the retirement age, so as to stop people becoming an economic burden on a reducing workforce.[35] Never before has age discrimination legislation been so essential!
It was reported in Equal Opportunities Review that the Irish Labour Court awarded £6,000 to a legal secretary, who claimed that she had been discriminated against on the grounds of age.[36] At the time of the hearing, Ireland was the only European country that had protection against age discrimination in its employment legislation. The case represents the first age discrimination case to be decided by a European Court. It therefore presents favourable optimism for enforcing the new legislation.[37]
The complainant was employed by a law firm, as a legal secretary for eleven months. The complainant alleged that her dismissal was due to the respondent’s decision to employ a younger person. The dispute was initially based on whether the complainant was a temporary or permanent employee, but she had never been presented with a written contract of employment and the court motioned that, in any case, this was of no value if the reason for her dismissal was based on age. The Court discovered that, prior to the complainant’s dismissal the partners of the firm had decided to redesign the job, which meant being trained to provide a quasi-legal and secretarial service. It emerged that the complainant was not considered for the new job, despite her experience and suitability for the new post. The Court observed that the complainant’s dismissal was arose because the new post had been designed for a younger person and that, the complainant, by reason of her age, did not meet the prerequisite. It was therefore held that the complainant was discriminated against by reason of her age.
The new legislation is welcomed more so when one looks to current policies employed at work on age discrimination. From one report, it emerged that just over half of the employers- 63 out of 122 respondents- had a written policy mentioning age diversity.[38] The remainder of employers did not yet have a policy on age diversity or indeed age discrimination.[39] Where the policies did exist it emerged that age discrimination was just one part of a list of possible grounds of discrimination. An example of such a practice was characteristic of Nottingham Primary Care Trust.[40] Age was included in the equal opportunity policy stating, ‘no employee or job applicant receives less favourable treatment on the grounds of sex, age, race, martial status, disability, religion, sexual orientation, sexual assignment, creed, colour, nationality, ethnic or national origins.’[41] It also emerged from the report that 30% of organisations in the public sector had an age policy, and public sector organisations formed just 23% of the respondents.[42] Just 27% of the respondents adopted the government’s Code of Practice, despite an increasing number, 63%, being aware of it.[43] Furthermore, it was found that just 56% monitored the age profile of their workforce.[44]
However, although legislation is an important start, combating discrimination also needs a broader approach. Indeed, the Directive explicitly calls on the member states to consult with stakeholders when transposing the Directive. In addition to legislation, member states should develop initiatives to inform individual workers and employers about their new rights and responsibilities, and to change employer and social attitudes towards age issues. Without this, the Directive will be less effective, as the House of Lords observed:
Few employers operate overtly ageist recruitment and retention policies (except in so far as they use fixed retirement ages). Age discrimination is frequently the unconscious outcome of an employer’s more general human resource management policy and procedure … the eradication of unconscious discrimination will require a fundamental cultural change on the part of employers and workers.[45]
Failure to acknowledge the new legislation, coupled with its novel influence, could create ‘an explosion of unnecessary tribunal cases,’ according to the CBI.[46] The Employers Forum on Age claims that employers could be exposed to litigation costs for unfair dismissal and discrimination claims of up to £193 million in the first year of the legislation alone.[47] A survey of 500 firms revealed that two-thirds of firms observed a rise in dubious employment tribunal claims and that companies feared the problem will escalate with the implementation of the new age legislation. Certainly, John Cridland, the CBI deputy director general, remarked: ‘In the current compensation culture, there’s a risk that people will take advantage of legal clarity.’[48] 44% of companies have little confidence in employment tribunals, believing the system to be ineffective.[49] This, of course, has the knock-on effect of costly charges of discrimination claims being brought by employees. In order to prevent such costly proceedings, United Kingdom businesses should prepare and protect themselves in advance of the age discrimination legislation, just as BT has done.
Combating age discrimination is certainly a new concept for many member states, indeed the United Kingdom. There is evidence that a number of governments and social partners do not yet recognize the reality of age discrimination and perceive it as similar to the other grounds of discrimination.[50] Certainly, one powerful criticism is that the Directive takes a negative and retrospective approach to discrimination, in line with other areas of discrimination protection. It appears that the extensive use of the discretionary power within Article 6 of the Directive, seeks to validate differences on the grounds of age as a legitimate criterion for discrimination.[51] The fact that these exceptions were spelled out in the Directive is interesting. Sargeant believes that it is perhaps indicative of the way that age discrimination should be treated differently from other types of discrimination.[52] Sargeant continues:
There appears to be an economic or business imperative that suggests that more harm will be done if discrimination does not take place, rather than an imperative that states that age discrimination is wrong and can only be justified in exceptional circumstances. Effectively, widespread discrimination is to be allowed to continue except those forms which are held not to be for the economic good of the business.[53]
The lack of understanding on the issue, is highlighted in the prevalent malpractice among member states, for example, age limits in human resource management.[54]
In its report on EU Proposals to Combat Discrimination, the House of Lords Select Committee was highly critical of the draft Framework Directive’s failure to tackle discrimination effectively, particularly in relation to Article 6.[55] In the Committee’s opinion, the draft failed:
To achieve the Commission’s goals of providing clear limits and certainty in the field of age discrimination. As drafted, there is a strong possibility that it would do more harm than good, effectively legalising age discrimination throughout the Community. There appears to be no coherent pattern in the list of justifications. Equally, it is unclear what ages will be covered, and what comparisons will apply in judging age discrimination. The draft framework Directive will give no protection to the growing proportion of the population which is over the age of retirement. It appears that the determination to tackle age discrimination is not uniformly strong. It is therefore vital that the Action Programme and similar measures should place particular emphasis on building awareness of the issue. At the same time the government should seek to ensure that any exceptions to the principle of equal treatment irrespective of age are clearly defined and justified.
There have been minor improvements in the drafting of the Directive, but the substance of the criticisms remain. A wide latitude is given to the member states about the scope and limits of the legislation and there is a concern about the effectiveness of the right in the sanctions for infringement that are ‘effective, proportionate and dissuasive.’[56]
Moreover, dilemmas are resulting from an uneven transposition. As stated previously, some member states have asked for a delay in transposition. Whilst the United Kingdom’s reasons may be justified, this undermines the essence of a Directive. A Directive aims to regularize the legal systems of member states, insofar as possible so that the same material conditions are in force throughout. A Directive is binding on the member states as regards the overall objective to be achieved. A recent case suggests why States need to work closely on these issues. Easyjet and British Air Line Pilot’s Association, have reported a complaint that three member states have banned pilots over the age of 60 from their airspace, due to health and safety grounds, despite there being no correlation with any other countries in the European Union.
To emphasise this point further, in some Member States, such as Germany, Portugal, and Luxembourg, there has been little or no progress reported in the transposition process.[57] In other member states, such as France, Italy and Austria, there has been technical compliance with the legislative requirements of the Directive but nothing to promote awareness of age discrimination and engagement of stakeholders.[58] Other member states, such as Ireland and Belgium, have widened the scope of the legislation into the field of goods and services, while others, notably the United Kingdom, have asked for a delay.[59] It seems that the Council has missed the opportunity to adopt a single unified Directive, which is not on miscellaneous grounds.[60]
On the other hand, the House of Lords have expressed their anxiety in relation to implementing the new legislation in such a short time frame and that the delay is not long enough:
We are concerned that the timescale for the implementation of the legislation on age discrimination will allow employers and workers at most two years to revise their procedures and expectations to conform with the new legislation. This is a very short period given the scale of the cultural shift required, and it may impose a part
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