RESEARCH PAPER 01/100 Age Equality Commission 16 NOVEMBER 2001 Bill Bill 10 of 2001-02
Candy Atherton won third place in the ballot for Private Members’ Bills on 28 June 2001. She introduced a Bill to establish an Age Equality Commission to advise the Government on discrimination issues in relation to older people on 18 July 2001. It is due to have its second reading debate on 23 November 2001. The Bill applies to Great Britain.
Julia Lourie
BUSINESS AND TRANSPORT SECTION
HOUSE OF COMMONS LIBRARY Recent Library Research Papers include:
01/85 The International Development Bill [HL] [Bill 37 of 2001-02] 01.11.01 01/86 Parliamentary Pay, Allowances and Pensions: the Reviews of 2001 08.11.01 01/87 Parliamentary Pay and Allowances: Current Rates 08.11.01 01/88 Members’ Office Costs – the new system 08.11.01 01/89 The Animal Health Bill [Bill 39 of 2001-02] 08.11.01 01/90 The British Overseas Territories Bill [Bill 40 of 2001-02] 13.11.01 01/91 Unemployment by Constituency, October 2001 14.11.01 01/92 The Anti-terrorism, Crime and Security Bill, Part XII: Anti-Corruption 15.11.01 Legislation [Bill 49 of 2001-02] 01/93 The Employment Bill [Bill 44 of 2001-02] 15.11.01 01/94 The Anti-terrorism, Crime and Security Bill, Parts VI & VII: Pathogens, 15.11.01 Toxins & Weapons of Mass Destruction [Bill 49 of 2001-02] 01/95 The National Health Service Reform and Healthcare Professions Bill 15.11.01 [Bill 47 of 2001-02] 01/96 The Anti-terrorism, Crime and Security Bill, Parts IV& V: Immigration, 16.11.01 asylum, race and religion [Bill 49 of 2001-02] 01/97 The Anti-terrorism, Crime and Security Bill, Part X: Police powers 16.11.01 [Bill 49 of 2001-02] 01/98 The Anti-terrorism, Crime and Security Bill, Parts III & XI: Disclosure and 16.11.01 Retention of Information [Bill 49 of 2001-02] 01/99 The Anti-terrorism, Crime and Security Bill, Parts I, II, VIII, IX & XIII: 16.11.01 Property, Security and Criminal Justice [Bill 49 of 2001-02]
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ISSN 1368-8456 Summary of main points
Candy Atherton won third place in the ballot for Private Members’ Bills on 28 June 2001 and introduced a short Bill to establish an Age Equality Commission to advise the Government on discrimination in relation to people aged 50 or over on 18 July 2001.
The Bill was originally drawn up by the Association of Retired and Persons Over 50 and has the support of Age Concern and other organisations representing older people. The Government is said to be giving the Bill a “fair wind”.
While there is evidence of discrimination against older people in employment, health and service provision, there are also areas of discrimination in their favour.
The Government has to introduce legislation outlawing age discrimination in employment by 2 December 2006, under the EC Equal Treatment in Employment Directive. The Age Equality Commission proposed in this Bill would range more widely than employment and cover the provision of goods and services as well.
The Government has not yet decided how to implement the Directive or whether it will require the establishment of a Commission. There is a debate about whether the Equal Opportunities Commission, Commission for Racial Equality and Disability Rights Commission should be merged into a single Equality Commission which would cover age and other areas as well.
CONTENTS
I Introduction 7
II The Bill’s Provisions 8
III Age Discrimination 10
A. Employment 10
B. Health Care 13
C. Travel Insurance 14
IV Government Policy 16
A. Conservative Government 16
B. Labour Party in Opposition 16
C. Labour Government 17
1. Code of Practice 17 2. Better Government for Older People 22 V EC Equal Treatment in Employment Directive 25
VI Age Advisory Group 29
VII Other Countries 31
VIII Equality Commissions 33
Appendix: Private Members’ Bills on Age Discrimination 37
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I Introduction
Candy Atherton, who won third place in the ballot for Private Members’ Bills on 28 June 2001, has introduced the Age Equality Commission Bill “to make provision for the establishment of an Age Equality Commission to advise the Government on discrimination issues in relation to older people”. The Commission would also advise business, the voluntary sector and public sector organisations, assess proposed legislation, propose schemes to address discrimination and further the interests of old people in the community. Launching the Bill on 12 July 2001, Ms Atherton said:
Discrimination on the grounds of age must be tackled. It is wrong that people are excluded from employment or can be charged extra just because of their age.
It is one of the great scandals of our day that older people have frequently been ignored by legislators. The time has come for the grey vote to take action.1
The problem had been brought home to her during the foot and mouth crisis when fit and active vets over 70 who volunteered to help were rejected by the Ministry of Agriculture, Fisheries and Food. This policy was later changed, but she found it “breathtaking that vets were excluded in the first place on grounds of age”.2 She had also been shocked when her mother was charged double overnight for travel insurance when she reached 70:
No other group in society would face charges like this on the grounds of race or sex. Why should older people be treated like this?3
The Bill is very similar to the Age Equality Commission Bill, introduced under the ten minute rule by Lawrie Quinn on 12 July 2000 and 25 April 2001.4 On the first occasion, leave to introduce the Bill was supported on a division by 190 MPs, with only 7 voting against. 5 Like most ten minute rule Bills, neither made any further progress. The Bill was originally drafted by the Association of Retired and Persons Over 50 (ARP/O50), and has the support of other organisations representing older people including Age Concern and Help the Aged. It is reported that the Bill will be given a “fair wind” by the Government.6
The Government is due to implement an EC Directive outlawing age discrimination in employment by December 2006, but the Commission would be able to look at discrimination in the provision of goods and services and in other areas as well. ARP/O50 has said that:
1 Quoted in “MP leads fight for old people’s rights”, Western Morning News (Plymouth), 13 July 2001 2 BBC News, 12 July 2001, http://news.bbc.co.uk/hi/english/uk_politics/newsid_1435000/1435523.stm 3 Association of Retired and Persons Over 50 press release, Candy offers sweetener for you and your mum, 13 July 2001 4 Bill 159, 1999-2000 and Bill 88, 2000-01 5 HC Deb 12 July 2000, cc 873-877 6 “This age-old problem is a disgrace”, Sunday Mirror, 29 July 2001
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One of the most important responsibilities of the Commission will be to set in context the Government’s decision to implement the European Equal Treatment Directive, which requires legislation on discrimination in employment by 2006. But there are many wider issues to be tackled. ARP/O50 will give every support to Candy to get this Bill on the Statute Book.7
This Bill is the most recent in a long line of Private Members’ Bills which have sought to tackle age discrimination. A list of those presented in the last twenty years is contained in the Appendix to this paper. The earlier Bills were primarily concerned to outlaw age discrimination in advertisements for jobs. Recently, the Bills have ranged more widely, covering the provision of goods and services as well as employment, and the establishment of statutory bodies to protect older people against discrimination.
The Liberal Democrats moved amendments to the Employment Relations Bill 1998-99, which were designed to outlaw age discrimination in employment, but none were successful.8
An Early Day Motion (EDM 178 of 2001-02) supporting Candy Atherton’s Bill had attracted 145 signatures by 13 November 2001:
That this House welcomes the Age Equality Commission Bill presented by the honourable Member for Falmouth and Camborne as a Private Members Bill; recognises that older people face discrimination on a daily basis as consumers and as employees; supports the establishment of an Age Equality Commission with an agreed remit to advise government and business on legislation and practice; and believes that the Commission would represent an important step in tackling discrimination and protecting the interests of older persons in our society.
II The Bill’s Provisions
Clause 1 of the Bill would establish an Age Equality Commission with the duty to:
(a) advise the Secretary of State on matters relating to age discrimination and the achievement of age equality;
(b) provide an assessment of how any proposed legislation will have an impact on the reduction of age discrimination and enhancement of age equality;
7 Association of Retired and Persons Over 50 press release, Candy offers sweetener for you and your mum, 13 July 2001 8 SC Deb (E) 23 March 1999, cc 567-581; HC Deb 30 March 1999, cc 930-964; HL Deb 16 June 1999, cc 340-345; HL Deb 8 July 1999, cc 1103-1107
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(c) advise the Secretary of State on the preparation of detailed guidelines on the implementation of schemes to address age discrimination issues for businesses, voluntary organisations and public sector organisations;
(d) advise the Secretary of State on how to promote equal treatment, and policies which further age equality in business and the wider community.
The Commission would be required to consult appropriate bodies when drawing up guidelines and legislative assessments and to take account of both the costs and benefits of its recommendations. Regulations would make provision for the appointment of the Commission and its staff.
Clause 2 defines “age equality” as “the absence of discrimination on the basis of a person’s age”. “Discrimination” is defined as:
(a) the denial or removal of rights customarily held by persons residing in the United Kingdom, or
(b) the creation of additional conditions that must be satisfied before rights customarily held by persons residing in the United Kingdom are granted.
This is a very different definition of discrimination from that contained in the existing discrimination legislation, which concentrates on “less favourable treatment”. For example, section 1(1) of the Race Relations Act 1976 provides that a person discriminates against another if
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but—
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
The clause also defines an “older person” as a “person who has attained the age of fifty”.
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III Age Discrimination
Candy Atherton’s Bill is directed at age discrimination against older people, defined as 50 or over. There is evidence of discrimination against this age group in employment and in the provision of services. On the other hand, there are many areas in which discrimination in favour of older people is long-established and generally supported: concessionary fares, reduced rate entry to museums and galleries, higher personal tax allowances and the New Deal for the Over 50s, to name but a few.
A. Employment
There have been many surveys over the years which suggest that age discrimination is widely practised in employment. One recent nationally representative survey of 1,004 adults, by the Chartered Institute of Personnel and Development (CIPD), found that:
Age discrimination is still evident in Britain’s work places, despite efforts by the government and others to convince employers that it is wasteful of talent. One in eight workers say that they have been discouraged from applying for a job in the last year because the recruitment advertisement contained an age restriction or implied that applicants needed to be a certain age…
Nearly a quarter of workers surveyed also agreed that employers are not interested in recruiting or promoting people over the age of 40. (…)
One in ten of those aged 45-54 believe that they have been rejected for a job in the last 12 months because the recruiter considered them to be "too old". Most suspect this to be the case rather than having any hard evidence of discrimination such as verbal or written confirmation. 9
Another recent survey, this time of 1,369 IT professionals by Silicon.com, the online news and recruitment service for the IT sector, and the Employers Forum on Age found that:
even though 65 per cent of companies are having problems recruiting or retaining staff, two-thirds of IT professionals are concerned about getting full time employment after the age of 45.
9 CIPD press release, 25 January 2001, Mature job seekers need not apply; CIPD survey reveals extent of age discrimination at work
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Furthermore, the survey indicates that older workers are right to worry - of those who said they were responsible for hiring staff, 37 per cent admitted age was a factor when making a recruiting decision. (…)
One of the key barriers that has to be addressed is the age at which employees are perceived to be older workers. Silicon.com's survey found that 21 per cent consider a person falling in the 35-40 age group to be an "older worker" while a quarter believe you become an older employee between the age of 40 and 45.10
The statistics show that labour market participation declines sharply after the age of 50:
1) Many people leaving work before State Pension Age do not appear to have done so voluntarily. In the last 20 years the employment rate amongst those aged 50 to State Pension Age (SPA) has fallen: 84% of men aged 50 to SPA were in employment in 1979; 67% of men aged 50 to SPA were in employment in 1997; 69% of men aged 50 to SPA were in employment in 2000.
2) The economic cost of age discrimination is high. The Government report ‘Winning the Generation Game’ (April 2000) found that the drop in the work rates amongst people aged over 50 since 1979, costs the economy about £16 billion a year in lost GDP and costs the public purse £3-5 billion in extra benefits and lost taxes. The Employers Forum on Age has put the figure higher at £26 billion a year in lost GDP.
3) There are around 19 million people aged 50 and over in the UK - 40% of the adult population. The proportion of older people in the population is growing, partly because the post-war baby boom generation is now reaching and passing 50 years of age. About 35% of the labour force is 45 and over compared to 34% in 1997; by 2010 almost 40% will be in that age group compared with 17% of 16 to 24 year olds.11
The Performance and Innovation Unit report, Winning the Generation Game, published in April 2000 commented:
One in three people between 50 and State Pension Age, 2.8 million in all, do not work. The proportion of men in this age group not working has doubled since 1979.
Only a minority of those affected are affluent people who freely chose to retire early. Almost half rely on benefits for most of their income, most commonly
10 Ageism survey: UK fails its ‘older’ workforce, Silicon. Com press release, 16 October 2000, http://www.silicon.com/bin/bladerunner?REQUNIQ=1004107140&30REQEVENT=&REQAUTH=210 46 11 DfEE press release, 14 February 2001, Government will legislate to tackle age discrimination
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Incapacity Benefit. There has been no surge in volunteering, learning or caring among this age group.
This situation causes poverty, exclusion and disillusionment for individuals. It reduces GDP by about £16 billion and damages the public finances by £3-5 billion annually. The ageing of the population will increase these costs over the next 20 years if nothing changes. (…)
Of the 2.8 million people in the UK not working between 50 and State Pension Age, 1.5 million are men and 1.3 million are women. The stories for men and for women have been different. Male employment rates have fallen; those for older women have remained low at a time when women’s employment generally has been increasing. (…)
For men, there has been a fall in employment rates at all ages, but rates have fallen twice as sharply for men between 50 and 65 as for those aged 25-49. Employment has always been lower for people approaching pension age, but the phenomenon has grown in two ways. First, working all the way to pension age has rapidly become the exception rather than the norm: only 37 per cent of men are still working aged 64, compared to 57 per cent in 1979. Second, male employment rates now start to fall at around 50, rather than from age 55 as in the past. If the employment rate among older men had not fallen since 1979, there would be 800,000 more men over 50 in work - more than the adult population of Birmingham.12
It identified a number of possible reasons for the decline in employment of older workers, one of which was negative attitudes to older workers:
One of the key causes of declining economic activity among older people is age discrimination by employers, which affects both the retention and re-entry of older workers. This underlying cause is almost impossible to quantify. In the European Union countries, a 1993 Eurobarometer Survey found that a large majority of people of all ages believed that there was age discrimination in recruitment, promotion and training.
There is a widespread perception among many employers that older people have inappropriate skills, are less productive and flexible, and take more sick leave than younger people. A study of employers’ attitudes,13 confirms that some employers are reluctant to hire older people because they believe that they have inappropriate skills. Some younger managers feel uncomfortable managing older staff. As mentioned above, many older people do have outdated skills, but many do not, and many could certainly learn new ones. Age discrimination consists of assuming that because of someone’s age, they are less able to do a job.
12 http://www.cabinet-office.gov.uk/innovation/2000/winning/active/03.htm 13 The ageing workforce - Employers’ attitudes towards older workers, P. Taylor and A. Walker, 1994
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B. Health Care14
Department of Health policy, under both current and previous governments, has always been that patients should be treated according to their individual clinical need, not their age.15 However, a series of reports produced in the last few years by charities such as Age Concern England and Help the Aged,16 together with a report by the NHS Health Advisory Service commissioned in 1997 by Frank Dobson MP when he was Secretary of State for Health,17 has suggested that this policy has not always been borne out in practice. Age Concern England’s 1999 report Turning your back on us, for example, set out a number of individual cases of substandard care which they felt demonstrated discrimination against older people, including:
• an elderly man with dementia lying on a mattress on the floor with no bed-clothes and with soaked pyjamas; he had reportedly been placed on the floor because he was being ‘demanding’. On one occasion a nurse left a sign over his bed saying ‘good luck for tonight’, in order to warn the night staff that he was being ‘troublesome’. • a 71-year-old man with gallstones being told by a junior doctor that ‘we wouldn’t consider surgery at your age’. • a 68-year-old referred for physiotherapy being asked by the physiotherapist ‘what else can you expect at your age?’ • allegations that UK heart transplant centres generally have ‘an arbitrary cut-off, in terms of potential transplant recipients, of 60 years’. 18
In a Written Answer in April 1999, the health minister John Hutton described age discrimination as being ‘quite unacceptable’ and promised that a National Service Framework (NSF) setting national standards of care for older people would be published the following year.19 The National Service Framework was in fact published in March 2001, setting out eight national standards, of which the first was explicitly ‘rooting out age discrimination’.20 The NSF was warmly welcomed by organisations representing older people, with Help the Aged describing it a ‘real leap forward’ and Age Concern England commenting that ‘this is a vital step forward in improving health and social care for older people.21
14 contributed by Katharine Wright, Social Policy Section 15 eg HC Deb 26 April 1999 c 28W & HC Deb 16 December 1994 c.831W 16 eg Age Concern England, Equal access to cardiac rehabilitation: age discrimination in the NHS: cardiac rehabilitation services, 1998; Help the Aged, Dignity on the ward: promoting excellence in care, 1999; Age Concern England, Turning your back on us: older people and the NHS, 1999 17 HAS 2000, Not because they are old, 1998 18 Age Concern England, Turning your back on us: older people and the NHS, 1999, pp 12-13 19 HC Deb 26 April 1999 c 28W 20 Department of Health, National Service Framework for Older People, March 2001 21 Department of Health press notice 2001/151, 27 March 2001
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C. Travel Insurance22
Travel insurance is often cited as an example of age discrimination. Press reports and voluntary organisations suggest that older people encounter both travel policies which have an upper age threshold which excludes them and that they may have difficulties with travel policies with strict exclusions. However, the approach to pricing appears to be the major issue. In a recent statement on Age Discrimination, Help the Aged described the fact that older people habitually face surcharges on travel insurance as one of the examples of ‘unfair age discrimination’.23 A recent press article quotes research which shows that it is common for older people to face increased premiums for some types of travel insurance:
Abbey National research shows that four out of ten travel insurers do not offer standard annual worldwide cover to anyone over 65. Those that do will substantially increase premiums for applicants above a certain age, usually 65, although some will accept people in their eighties and nineties.24
Other articles suggest that many policies simply double the premium when the applicant is above 65.25
The insurance industry has in the past denied that such premium increases are the result of discrimination on grounds of age. For example, a spokesman has been reported as saying that higher premiums reflect the higher risks associated with providing travel insurance to older people:
It is only fair that an older traveller should pay an appropriate premium, since experience shows they are more likely to make an expensive claim requiring hospitalisation or an emergency flight home.26
There is therefore a question about whether those companies which apply high premium loadings to travel policies bought by older people are merely reflecting the increased risk of a category of insurance buyer or whether the premiums charged bear no relation to the actual risks.
Travel insurance policies are typically complex. They usually cover a range of risks of quite different kinds, including for example medical expenses while on holiday, delayed travel plans and loss of or damage to personal possessions. On the other hand, travel
22 contributed by Christopher Blair, Business and Transport Section 23 ‘Age discrimination’, Help the Aged policy statement, September 2001 24 ‘Discrimination hits pensioners in the pocket’, The Times, 14 July 2001 25 ‘Pensioners forced to pay up to five times more for holiday insurance policies’, Mail on Sunday, 6 August 2000 26 Quoted from ‘Paying the premium for growing older’, Daily Telegraph, 12 December 1998
14 RESEARCH PAPER 01/100 policies - particularly those of short duration - are often sold as essentially standard packages and without the policyholder completing a proposal form. This affects the way that the policies are underwritten.
Underwriting is the process by which insurers assess whether to accept a proposal for insurance and if so, at what price and on what terms. Insurance works by spreading individual risks between a large pool of such risks and then pricing the premium which is charged for accepting individual risks so that it reflects the average risk for that pool. Some people will be of broadly average risk - for example, in relation to a health insurance they might be in good current health, a non-smoker, and with no pre-existing conditions. Such people would expect to be offered standard policies at standard rates. However, others will present increased risks - perhaps because they smoke, or have a serious medical condition already.
Faced with a non-standard risk there are four basic choices for the insurer. The insurer could decline insurance altogether and reserve the policy for standard risks only. Or the insurer could accept the proposal but charge a higher premium to reflect the higher risks. Or the insurer could redefine the standard risk and raise premiums across the board. Finally, the insurer could manage the perceived additional risks by excluding those risks from the policy. All of these approaches are found in travel insurance to some degree. Some may be used to manage risk in the absence of more detailed information; for example, if the aim of the insurer is to control its potential exposure to medical claims, it may achieve this either by seeking detailed health information from an applicant for insurance before accepting them or by excluding from the cover conditions which they have had in the previous two years.
It may be helpful to draw a comparison with other areas where anti-discrimination legislation already applies to insurance contracts, such as disability or sex discrimination legislation. In both, while it is generally unlawful to discriminate on grounds of disability or sex by treating a person less favourably than someone who does not fall in the protected category there are exceptions. Differential treatment can be lawful if the insurer can show that it is justified, for example, where it is based on information or data which is relevant to the risk insured against. An obvious potential source of justification for insurers in such cases is their claims experience. In other words, they may be able to justify discrimination on grounds of sex if they can show that such discrimination has a statistical or actuarial justification.
In a competitive market, if prices were to be set at a level which is not based on risk one would expect other firms to enter that market and sell policies which are priced to reflect the risks more accurately. Press articles on travel insurance for older people suggest that this is a feature of the travel insurance market, in that there are some policies which have no upper age limit, including some offered in association with voluntary sector organisations. There also appear to be significant price variations between different companies for similar age groups. One obvious conclusion from this is that purchasers of travel insurance may benefit significantly from shopping around. On the other hand, an incomplete picture would be gained by focusing solely on age-related premiums since the
15 RESEARCH PAPER 01/100 scope of a policy’s cover and the wording of any exclusions which it applies are as relevant as price in determining whether a particular policy is suitable and good value.
IV Government Policy
A. Conservative Government
The Conservative Government opposed legislation on age discrimination, arguing that it would be ineffective. Instead, it launched a number of campaigns designed to persuade employers of the merits of older workers. They involved the publication of leaflets, such as “Getting On”, “Too Old, Who Says?” and “Age Works”, and a series of road shows, to which employers were invited. Cheryl Gillan, then Parliamentary Under-Secretary of State for Education and Employment, summarised the Conservative approach in her speech on second reading of David Winnick’s Private Members’ Bill to ban upper age limits in advertisements:
What are the Government doing? What progress is being made? The Campaign for Older Workers is targeted at all the key players in the labour market and at all aspects of recruitment and employment. We consider it vital to persuade employers that age discrimination at work has no place in a prosperous economy. To compete successfully, employers must be ready to take full advantage of the skills, reliability, experience and commitment that older people offer. The differences between individuals are far greater and far more job relevant than the differences between age groups. It is in employers’ own interests to treat people on their merits regardless of age. 27
B. Labour Party in Opposition
In opposition, the Labour Party supported legislation. During the same debate, Ian McCartney, then a Labour spokesman on employment, promised that an incoming Labour Government would introduce comprehensive legislation to make age discrimination in employment illegal:
The Labour party’s position is quite clear. This Conservative Government may not accept my hon Friend’s Bill, but an incoming Labour Government will introduce comprehensive legislation to make age discrimination in employment illegal. We shall consult on the legislation. We want to ensure that not only will workers have a remedy in law against discrimination, but the appropriate legal framework will be put in place to enable employers to change their workplace practices, with co-operation between management and workplace representatives. Whether those workplace representatives are or are not in a trade union will not be relevant.28
27 HC Deb 9 February 1996, c 610 28 HC Deb 9 February 1996, c 618
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The Labour manifesto for the 1997 Election was rather less sweeping:
We value the positive contribution that older people make to our society through their families, voluntary activities and work. Their skills and experience should be utilised within their communities. That is why, for example, we support the proposal to involve older people as volunteers to help children learn in pre-school and after-school clubs. In work, they should not be discriminated against because of their age.29
C. Labour Government
Once elected, Labour Ministers backtracked on the commitment to comprehensive legislation, preferring instead, to consult widely on the best way of eliminating discrimination.30 On 2 February 1998, shortly before the second reading debate on another Private Member's Bill aimed at eliminating age discrimination in job advertisements,31 Andrew Smith, Minister for Employment, announced that the Government would be drawing up a voluntary Code of Practice in consultation with the CBI, the TUC, the Employers Forum on Age, Age Concern and others. 32 This was widely seen as a Government climbdown and an indication that they had decided not to go ahead with legislation. 33
1. Code of Practice
The Code of Practice on Age Diversity in Employment was eventually published in June 1999. Launching the Code, Andrew Smith, Employment Minister, said:
We must encourage businesses to employ people of all ages. This will boost the economy and ensure firms flourish, by using the skills and abilities of employees regardless of age. Companies must attract the best staff by avoiding age limits or ranges in job advertisements.
Basing 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 50.
29 New Labour because Britain deserves better, p 26 30 See, eg, exchange of questions between David Winnick and Andrew Smith, Minister for Employment, HC Deb 22 May 1997, cc 825-826 31 Linda Perham’s Employment (Age Discrimination in Advertisements) Bill 1997-98, Bill 15 32 DfEE press release, 2 February 1998, Code of Practice to combat age discrimination - Smith 33 Times, 3 February 1998, “Law against ageism fraught with legal risks, says minister”; Guardian, 3 February 1998, “139 MPs oppose Blair stand against ageism law”; Times, 4 February 1998, “The age of reason”
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The Code provides a set of principles on tackling age discrimination in employment. It is supported by guidance and case studies which I believe will help employers tackle age discrimination in their organisations.
The Government alone cannot make all the changes that are needed. We need the help of our partners - in business, in interest groups and in the general public. By working together we can ensure that we make the best use of the skills and abilities of people, regardless of age.34
The Code of Practice was distributed to over 5000 employers, including the top 100 UK employers. It was also issued to TECs, National Training Organisations, local education authorities, Business Links, small and medium enterprise bodies, careers services and Chambers of Commerce. It was publicised through posters and leaflets in Job Centres, Citizens’ Advice Bureaux and local libraries.35
The Code covers six areas:
• Recruitment - Recruit on the basis of the skills and abilities needed to do the job;
• Selection - Select on merit by focusing on application form information about skills and abilities and on performance at interview;
• Promotion - Base promotion on the ability, or demonstrated potential to do the job;
• Training and development - Encourage all employees to take advantage of relevant training opportunities;
• Redundancy - Base decisions on objective, job-related criteria to ensure the skills needed to help the business are retained;
• Retirement - Ensure that retirement schemes are fairly applied, taking individual and business needs into account.36
Employers welcomed the package. The Institute of Personnel and Development, for example, argued that the absence of legal sanctions would encourage employers to take action against ageism in the workplace. The Institute’s director-general, Geoff Armstrong, said that small firms, in particular, would be more likely to seek help with anti-discrimination policies if they did not fear "the long arm of the law".37 However, campaigning groups remained sceptical about the effectiveness of the voluntary approach.
34 DfEE press release, 14 June 1999, New code will tackle age discrimination at work 35 Ibid 36 The Code is available at the following Internet address, http://www.dfee.gov.uk/agediversity/ 37 "Anti-ageism protagonists divided on voluntary code", People Management, 30 June 1999
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Richard Worsley, director of the Carnegie Third Age Programme was concerned at the lack of any pressure on employers to adopt the recommended good practice:
Why should an employer take any notice of these documents? During the lengthy consultations that led to this code, Smith was offered several potential answers.
• The government could have taken the chance to say that, if this code does not lead to a measured reduction in age discrimination, legislation will follow.
• Smith could have included his apparent intention to monitor and publish the results of the code.
• He could have encouraged employers and their organisations to make a public commitment to sign up to the code.
• He could have pursued and explained his earlier statement that he would talk to employment tribunal chairs about giving some form of legal standing to the code.
Not a word appears in either document about any of these options. The tone is: "I’m sorry to bother you, but just in case you are interested, here are a few thoughts we’ve put together".38
The DfEE commissioned research into the effectiveness of the Code and the Government believes that this shows the Code is beginning to have an effect. However, the Employers Forum on Age argues that both the Government commissioned research and other surveys suggest the Code is having a rather limited impact. The Education and Employment Committee, in its report on Age Discrimination in Employment, described these conflicting views:
13. To measure the effectiveness of the Code of Practice, the Department for Education and Employment (DfEE) commissioned a programme of research. The research was designed to take place in three waves. The first, undertaken six months before the Code was launched, provided a baseline against which change could be measured. The second wave was undertaken six months after the Code was published. The preliminary findings of the second wave were published in June 2000. The third and final wave took place in September 2000. The results of the third wave are expected to be published during the summer of 2001.
14. The Government told the Sub-committee that "the wave 2 survey indicates some promising signs of change with more companies orientating their policies towards age diversity". It cited the following examples in support of its analysis:
38 "The age of forgetfulness", People Management, 30 June 1999
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(i) the proportion of companies using age discrimination as a selection criterion fell by almost 50 per cent in the six months following the introduction of the Code;
(ii) the proportion of companies taking age into consideration when selecting candidates for promotion decreased from 18 per cent to 15 per cent between the first and second waves of research; and
(iii) the first wave of research found that 72 per cent of companies offered training and development opportunities to all staff. The second wave of research found that this figure had increased to 81 per cent.
15. Other interpretations of the interim findings have not been so positive. During the seminar on age discrimination, both Mr Richard Worsley of the Carnegie Trust and Ms Dianah Worman of the Chartered Institute for Personnel and Development, suggested that the results to date had been disappointing, although they accepted that it was too early to draw firm conclusions. Their position is supported by independent research undertaken by the Employers’ Forum on Age (EFA). The EFA said its "research reveals disappointing results on the Code’s impact". Its research shows that:
(i) only 25 per cent of employers knew of the Code;
(ii) of these, only 4 per cent claimed to be fully aware of the Code;
(iii) 63 per cent of employers had no plans to change the way in which their businesses operated; and
(iv) among those who knew of the Code, there was widespread misunderstanding of its purpose: 50 per cent thought that it concerned age limits in advertisements; 5 per cent thought that it was about ‘fast- tracking’ younger workers. 30 per cent had no knowledge of its contents.
16. Other survey findings also suggest that the Code has yet to have a significant impact on employment policy. The CBI's Employment Trends 2000 survey revealed that, while 50 per cent of employers surveyed knew about the Code, only 9 per cent were using it. Based on these results, the EFA argued that the Code is too focussed on older workers, has been insufficiently promoted and has failed to communicate the business case for age diversity. The Government’s presentation of the business case is persuasive but has not been convincing enough to stimulate change on the part of employers. In view of the tight labour market conditions and severe skills shortages in some sectors, the Government has a unique opportunity to advance more powerfully the
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business case in favour of age diversity. We recommend that it does so with urgency.39
The Government, in its response to the Select Committee, described its current plans for advancing the business case in favour of age diversity:
The Government agrees there is a need to increase the profile of the business case for age diversity. (Responses to 1, 2, 5 also apply.) We are aware that although the early findings from the evaluation of the Code have shown some positive results, including the fact that there has been an increased awareness amongst employers, further work is needed. We also accept that the welcome expansion of work opportunities in the economy and the reduction in unemployment provides an opportunity to advance the business case in a more receptive environment, with more employers anxious to recruit and retain good people.
We will continue to advance the business case through supporting the work of the Inter-Ministerial Group for Older People. The IMG is currently taking forward varied strands of work focusing on older people under the banner ‘Life Begins at 50—a better society for older people’. This work is based on the conclusions from the Performance Innovation Unit report ‘Winning the Generation Game’ on improving opportunities for active ageing; the Better Government for Older People report—‘All our Futures and the findings from the Foresight Ageing Population Panel report 'The Age Shift’. This will all be considered in our future operational plans.
We have three ongoing projects:
• Case Studies of Employer Good Practice in the Employment and Retention of Older Workers;
• Work with small/medium employers, looking at positive examples of why they should adopt age diverse working practices; and
• Occupational Sector restrictions.
These projects will provide a range of information which we will use to promote the business case for age positive employment practices. This material will be ready for dissemination in Summer 2001.
In addition, we will continue to promote the business case by targeting employers and sectors through trade press articles and advertising, employer awards and
39 Education and Employment Committee, Seventh Report 2000-01, Age Discrimination in Employment, HC 259, paras 13-16, http://pubs1.tso.parliament.uk/pa/cm200001/cmselect/cmeduemp/259/25903.htm#a5
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other initiatives. We will continue to work through our external partner network and through our local and internal government department infrastructure.40
The policy of tackling age discrimination in employment by promoting a voluntary Code of Practice has now been overtaken by events in Europe. In November 2000, the European Council adopted a directive outlawing age discrimination in employment, which must be implemented in Member States by December 2006 (see part V below).
2. Better Government for Older People
The Better Government for Older People programme was set up in 1998 to run for two years and finished in December 2000. It was a partnership between central and local government, the voluntary sector, the academic world and older people. Partners in the national programme were the Cabinet Office, Age Concern England, the Anchor Trust, the Carnegie Third Age Programme, Help the Aged and the University of Warwick. The Local Government Association also played a very active role. In a report published in June 2000, the Programme’s steering group argued that there was a strong case for legislation outlawing age discrimination in a wider field than just employment:
Combating Age Discrimination
Older people and managers involved in the pilot projects view ageism as the key obstacle to be overcome. Pilot projects believe their efforts were hampered by lack of legislation. There is evidence that services very often treated older people poorly. Negative stereotypes about older people will continue to hold back improved services and reduce opportunities available to them unless and until this is tackled. In the light of this evidence:
We believe there is a strong case for legislation against all forms of unfair age discrimination and call on the Government to bring forward proposals to that end. Winning the Generation Game states that the Government should introduce age discrimination legislation if evaluation of the Code of Practice on Age Diversity in employment shows that it has not been effective. The Government has accepted the report’s conclusions. We believe that legislation should address not just employment but also access to goods and services, including health, education and transport services. We urge the Government to bring forward such proposals in the next Parliament.
We call upon all those involved in journalism, broadcasting and publishing, to examine the way that older people are portrayed with a
40 Education and Employment Committee, Eighth Special Report 2000-01, Government’s Response to the Seventh Report from the Committee Session 2000-01, Age Discrimination in Employment, HC 518, 9 May 2001
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view to removing stereotypes of older people and, wherever possible, to acknowledge instead their diversity, abilities, skills and experience.
We recommend that all employers and service providers examine their employment practices, methods of service delivery, publicity materials and all other aspects of their business to detect and remove discrimination against older people and help unlock their full potential.41
The Government response was contained in Building on Partnership, published in February 2001:
We are determined to tackle discrimination against older people and will continue to act to combat it wherever it is found.
Employment
We will legislate against unfair age discrimination in employment. In preparing domestic legislation the Government will build on the work that is well under way under the Code of Practice on Age Diversity in Employment. This Code of Practice, which was launched in 1999, sets the standard for non-ageist approaches to recruitment, training and development, promotion, redundancy and retirement. The full findings of the impact evaluation of the Code of Practice (together with related research, to be published by summer 2001) and widespread consultation will inform our implementation of age discrimination legislation.
A European Directive, agreed on 17 October 2000, covers discrimination in employment, vocational training and guidance, and provides a sound foundation on which to build UK legislation. This European Directive sets a framework that will ensure that there are minimum standards for combating age discrimination throughout the European Union. It will be fully implemented by 2006.
Health
We are committed to person-centred care and will not tolerate ‘ageism’ in the health services. The ‘NHS Plan’, announced in July 2000, continues the drive to improve national standards in caring for older people. The ‘NHS Plan’ also makes clear, that any practices that discriminate against older people will be challenged and removed. The ‘National Service Framework for Older People’ (NSF), which will be published as soon as possible, will, for the first time, set national standards for the care of older people. The NSF will also stipulate that ageism will not be tolerated in the NHS. The Human Rights Act provides a means for patients who feel they have been discriminated against on the basis of their age to take legal action.
41 All our futures, report of the Better Government for Older People programme, June 2000, http://www.bettergovernmentforolderpeople.gov.uk/reference/pub160.htm#ch5
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Education
Older people who continue to be active learners enjoy healthier lifestyles and maintain their independence longer than those who stop learning. We have made clear that locally based adult and community learning is a vital part of our plans to drive up achievement, widen participation in learning, and strengthen community confidence and capacity.
The new Learning and Skills Council (LSC), which will come into operation in April 2001, will take responsibility for around £5 billion of central government funding for adult and community learning. It will be responsible for breaking down the barriers that prevent people participating in learning. Local LSCs will consult with local education authorities, local authorities and local people, including older people, to ensure that needs are met and monitor the quality of provision in their area. They will use their funds to drive the improvements that are necessary to remedy weaknesses, tackle social exclusion and promote equal opportunity.
Transport
Many older people depend on public transport for mobility. Our new long-term integrated transport strategy will help older people by delivering more accessible buses, trains and taxis, half price local bus fares for pensioners and providing support for a wide range of flexible, community transport projects, such as minibus and taxi-based schemes. We have recently carried out an audit of older people’s transport needs and through the Inter-Ministerial Group for Older People, we will use the findings to ensure that transport provision for older people is improved.42
In response to a specific question about why the Government did not propose to introduce legislation to outlaw age discrimination in a wider area than just employment, the Government has pointed to the complexity of the issues involved and has said that employment is its priority:
Age Discrimination
Lord Lester of Herne Hill asked Her Majesty's Government:
What are their reasons for rejecting the recommendation in All Our Futures that legislation against unfair age discrimination should address not only employment but also access to goods and services, including health, education and transport services.[HL846]
42 http://www.dss.gov.uk/publications/dss/2001/bgop2/bgop.pdf
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What legal remedies they intend to introduce for the victims of age discrimination in the fields of health, education and the provision of goods, services and facilities to the public or a section of the public.[HL848]
Baroness Blackstone: Building on Partnership, the Government’s response to All Our Futures, states our commitment to tackling age discrimination wherever it is found. We are already introducing measures that will make a difference to older people in employment, health, education and transport. Making legislation an effective way of tackling age discrimination is a complex task and our priority is to introduce age legislation in employment, vocational training and guidance. Legislation alone does not achieve the culture change that it is needed to end unfair age discrimination. The partnership approach of the Better Government for Older People programme has driven forward many improvements and reforms across the whole range of public services, which will help to effect a culture change. We want to build upon the success of that partnership approach.43
V EC Equal Treatment in Employment Directive
In November 1999, the European Commission introduced proposals for a directive establishing a general framework for equal treatment in employment and occupation, which covered discrimination on grounds of age.44 It was put forward under the new Article 13 added to the Treaty establishing the European Community by the Treaty of Amsterdam agreed in June 1997. Directives adopted under this Article require the unanimous support of all Member States. It provides:
Article 13 (ex Article 6a)
Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
The DfEE’s Explanatory Memorandum on the proposed directive, submitted on 6 January 2000, suggested that the UK Government intended to continue to address questions of age discrimination through the Code of Practice, at least for the time being:
13. Our negotiating strategy will have to take account of an evolving domestic agenda. Adoption of the proposal in its current form would require changes to UK law. The Government is open to making necessary and proportionate changes in this area to promote equal opportunities if the case is made. However, the need to avoid
43 HL Deb 26 February 2001, cc 112-113WA 44 COM (1999) 565 final, 25 November 1999
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unnecessary and burdensome regulation will remain a priority in the Government’s considerations. It will also be guided by assessments of the progress which can be achieved through non-legislative means such as codes of practice. The possible requirement for legislative change differs according to the type of discrimination. (…)
• Sexual orientation and age: the Government has produced a Code of Practice on discrimination in employment based on age and proposes that a Code of Practice on the ground of sexual orientation should be produced in conjunction with the Equal Opportunities Commission.
However, after much discussion and revision, political agreement on the directive was reached at the Employment and Social Policy Council on 17 October 2001.45 Employment Minister Tessa Jowell who led the Government’s negotiations said:
Our chief concern was to get the detail right. We have fought hard to ensure the Directive is workable in practice and does not burden business, schools and other organisations with unintended problems. We have also secured an exemption for the armed forces in order to ensure combat effectiveness.
Delivering real benefits for individuals suffering discrimination at work depends on a realistic timetable for implementation. That is why we have agreed a deadline for 2003 for the provisions on religion and sexual orientation and 2006 for disability and the more complex age discrimination laws. 46
Among the negotiating successes highlighted in the DfEE press release at the time, were:
• Age provisions clarified with exemptions for occupational pensions.
• Exemption for the armed forces from the provisions on age and disability47
The directive was finally adopted at the Employment and Social Policy Council on 27 November 2000 and published in the Official Journal on 2 December 2000. This Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC) is designed to outlaw discrimination in employment on the grounds of religion or belief, disability, age or sexual orientation. Member States have until 2 December 2003 to implement the directive’s provisions on religion or belief and sexual orientation, and until 2 December 2006 to implement the provisions on age and disability.
45 DfEE press release, 17 October 2000, UK reaches political agreement on new EU anti-discrimination directive 46 Ibid 47 Ibid
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The directive imposes a general prohibition on both direct and indirect discrimination on grounds of age in the following areas:
(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;
(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
(c) employment and working conditions, including dismissals and pay;
(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.48
It makes it clear, though, that it “does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes”,49 and that Member States may exempt the armed forces from the age provisions.50
The directive does, however, allow discrimination where age is a genuine occupational requirement. Less favourable treatment of older workers would be allowed where:
by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, [age] constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.51
There are more specific provisions on age discrimination in Article 6:
1. Notwithstanding Article 2(2) [the article which defines discrimination], Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
48 Article 3 (1) 49 Article 3 (3) 50 Article 3 (4) 51 Article 4 (1)
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Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) 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.
2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.
The Government’s view is that this means compulsory retirement ages will be unlawful unless they can be objectively justified:
Occupational Pensions and Retirement
64. In light of Article 6.2 of the Directive, the United Kingdom (and other Member States) will be entitled to exclude the fixing of ages for admission to, or for entitlement to benefits payable under, occupational pension schemes from the scope of the legislation implementing the age provisions of the Directive. Our current intention is to make use of this derogation.
65. There is no such derogation in respect of compulsory retirement ages. They will be unlawful unless employers can show that they are objectively justified – in accordance with criteria specified in legislation transposing the Directive. In fact, we are already promoting the concept of flexible and phased retirement for the benefit of employers and individuals – and the business benefits of existing good practice.52
52 Education and Employment Committee, Seventh Report 2000-01, Age Discrimination in Employment, HC 259, 21 March 2001, DfEE evidence, p 8
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The Government intends to consult widely before implementing the Directive and is unlikely to introduce the changes before the December 2006 deadline:
58. The Directive provides for a six year implementation period for both age (and disability).
The Government supported the six year implementation period for age to ensure we would have the time to consult closely and extensively with employers, individuals and expert groups, to prepare clear, workable and beneficial age legislation. We listened to our social partners during the consultation on the Directive. Employer groups were concerned about confusion and a rush to litigation, and age representative groups expressed concerns about ineffective legislation. We agree the importance of producing clear guidance for employers to enable them to prepare for legislation, and the need to develop workable legislation to effectively outlaw age discrimination based on ill-founded prejudice, and the inappropriate use of age criteria. We will take the time needed to achieve this. As we look to the extensive consultations ahead, it would be wrong to predict at this stage the necessary timescale. That does not mean we will do nothing in the meantime.
59. We are already tackling age discrimination by vigorously promoting the Code of Practice on Age Diversity and the benefits to be realised. Indeed the evaluation of the impact of the Code and a range of related research will report by the summer 2001 and help to inform the targeting of our further action to stop unjust discrimination. We must ensure all employers understand the benefits of age diversity. (…)
66. We currently anticipate that legislation implementing the Directive would not come into force until December 2006. As mentioned above, it will take time to produce workable legislation and clear guidance; and employers will need time to prepare for the legislation. The exact timescale will be determined in the light of responses to the wider consultation exercise. 53
A first round of consultation is due to begin “within the next three months”. This will be on issues “common to discrimination on grounds of age, sexual orientation, religion, disability and race, including enforcement”.54
VI Age Advisory Group
On 14 February 2001, Margaret Hodge, Minister for Employment, announced that an Age Advisory Group would be established to advise the Government on age issues as part of the consultation on implementing the EC Directive’s provisions on age discrimination.
53 Memorandum from the DfEE, Education and Employment Committee, Seventh Report 2000-01, Age Discrimination in Employment, HC 259, pp 7, 8 54 Alan Johnson, HC Deb 30 October 2001, c 584W
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Giving evidence to the Select Committee Enquiry on Age Discrimination in Employment, Mrs Hodge said:
This Government is the first to recognise the importance of tackling age discrimination in the workplace and we’ve already provided voluntary guidance to help employers. We will legislate against age discrimination in employment within six years. That will give us the necessary time to consult extensively with employers, individuals, and expert groups on age good practice, including the right approach to take for retirement ages.
The Age Advisory Group to advise on the issues to be addressed through the consultations ahead. The Group includes organisations such as the CBI, the Chartered Institute of Personnel and Development, Small Business Service, the TUC, Employers Forum on Age, Age Concern, the Society of Chief Personnel Officers, The National Council of National Training Organisations, and Third Age Employment Network.
Unfair discrimination will be made illegal. There may be instances where employers can show that a difference of treatment is objectively justified. The Government will clarify where such differences may be justified through extensive consultation over the coming years.
We want to encourage more flexibility and choice for retirement with benefits to employers and employees alike. For employers, a flexible approach can be a means of reducing capacity without losing the people concerned or the qualities and expertise they bring to the business; for employees, gradual retirement can be a useful way of preparing to cope with the difference between working full time and life after retirement. 55
A DfEE press release announced the members of the Age Advisory Group:
Dominic Johnson, CBI Dianah Worman, Chartered Institute of Personnel and Development Kay Carberry, TUC Sam Mercer, Employers Forum on Age Steve Smith, Small Business Service Dr Andy Powell, National Training Organisations National Council Keith Handley, Society of Chief Personnel Officers Patrick Grattan, Third Age Employment Network John Harwood, Learning Skills Council Bruce Armitage, Scottish Enterprise Grampian
The following organisations have confirmed their membership and will be putting forward their representatives shortly –
55 DfEE press release, 14 February 2001, Government will legislate to tackle age discrimination
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Age Concern England Age Concern Wales56
Candy Atherton’s view is that a statutory Age Equality Commission would be in a better position to advise the Government on the implementation of the directive:
In the next few years the Government must implement an EU Directive making it an offence to discriminate on grounds of age. An Age Equality Commission would play a vital role advising on these changes, with sharper teeth and a wider frame of reference than the existing Age Advisory Group. It would make sure the interests of older persons would be well served by the changes.57
VII Other Countries
A number of other countries already have legislation covering age discrimination in employment (and other areas as well). In most countries the law has only recently been enacted, but legislation has existed for some 30 years in the USA, 20 years in Canada and 10 years in Australia. Recent research for the Joseph Rowntree Foundation drew the following conclusions about the impact of legislation and the lessons for the UK:
Evidence of the overall effect of such legislation is in most cases weak. However:
- Legislation has had a positive effect on employment rates of older workers in the United States. This is mostly due to them leaving jobs at a later age, rather than to more of them being hired.
- Employer behaviour has changed in countries with legislation, to the extent that explicit discrimination, especially in recruitment, has reduced. However, society’s and employers’ attitudes to older workers do not yet appear to have shifted as much as towards groups such as women and people from minority ethnic communities, where legislative protection has, generally, operated for longer.
- Forbidding employers to set mandatory retirement ages may have made them a bit less likely to hire older workers, but there is no evidence that this has been a major disincentive
The international experience points to the importance of some key choices about how to design legislation in the UK. In particular, legislators must decide:
56 Ibid 57 “Why elderly need help to fight discrimination”, by Candy Atherton, Western Morning News, 23 July 2001
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- Whether to deal with both age and other forms of discrimination in a single law and agency. To do so would show that age discrimination is viewed seriously, but age also risks taking a ‘back seat’ in a single agency.
- What powers to vest in the commission that will enforce the legislation: in particular, whether to give it proactive powers of investigation and regulation.
- Whether to permit employers to set mandatory retirement ages.
- What to exempt from the legislation. Human rights considerations must be balanced with economic efficiency and other objectives; but too many exemptions tend to discredit anti-discrimination laws.58
In the USA the Equal Employment Opportunity Commission (EEOC) enforces a number of different Acts which deal with discrimination in employment on grounds of race, sex, disability and age. The legislation on age is the Age Discrimination in Employment Act 1967 (ADEA), which protects individuals who are 40 years of age or older.59
In Canada, the Canadian Human Rights Act protects anyone living in Canada against discrimination in or by federal departments and agencies and inter-provincial bodies such as airlines and telecommunication companies. The grounds of discrimination recognised by the Act include age as well as sex, sexual orientation, race, disability and religion. The Canadian Human Rights Commission administers the Act.
In Australia, there is a Human Rights and Equal Opportunity Commission which deals with complaints under the Human Rights and Equal Opportunity Commission Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, and the Disability Discrimination Act 1992. There is no separate age discrimination legislation, but the Human Rights Commissioner deals with age discrimination as well as discrimination on grounds of sexual preference, religion, political opinion, trade union activity and medical record. Separate Sex Discrimination, Disability Discrimination and Race Discrimination Commissioners deal with complaints in their areas. 60
In New Zealand there is a Human Rights Commission which has the power to investigate and conciliate in complaints of unlawful discrimination on the grounds of age as well as many other areas, including sex, race, disability, sexual orientation and political opinion.
58 Zmira Hornstein, Outlawing age discrimination: Foreign lessons, UK choices, Joseph Rowntree Foundation (JRF), July 2001, summarised on the JRF website at http://www.jrf.org.uk/knowledge/findings/socialpolicy/711.asp 59 US Equal Employment Opportunity Commission, http://www.eeoc.gov/facts/qanda.html 60 Australian Human Rights and Equal Opportunities Commission, http://www.hreoc.gov.au/about_the_commission/functions/index.html and http://www.hreoc.gov.au/human_rights/index.html
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The Commission is established under the Human Rights Act 1993. This covers discrimination in the provision of goods and services as well as employment.61
In Ireland, the Equality Authority deals with complaints about unlawful discrimination on grounds of age and other factors (including gender, disability, race, sexual orientation and religious belief). The Employment Equality Act 1998 and the Equal Status Act 2000 outlaw discrimination in the provision of goods and services as well as employment and training.62 (See Part VIII below for more on the Irish legislation.)
VIII Equality Commissions
There are already statutory commissions with a remit to advise the government on discrimination both in employment and in the provision of goods and services in relation to sex, race and disability in Great Britain. In Northern Ireland a single Equality Commission advises on these three areas and on discrimination in relation to religious and political opinion in employment. There is an active debate in Great Britain about the desirability of combining the existing single issue commissions into one commission which would cover all forms of discrimination, including those (such as age) which will be outlawed under the EC Equal Treatment directive. The debate extends to the question of whether there should be a separate Human Rights Commission to advise on the Human Rights Act 1998 and whether there should be an over-arching commission covering both equality and human rights.
The existing commissions all operate in areas in which there is legislation outlawing discrimination and have the power to assist individuals in enforcing their rights under the legislation. Generally, they all have a duty to:
• work towards the elimination of discrimination; • promote equality of opportunity; and • advise the Government on legislation
The Commissions are:
• The Equal Opportunities Commission which covers discrimination on the grounds of sex under the Sex Discrimination Act 1975 and the Equal Pay Act 1970
• The Commission for Racial Equality, which covers discrimination on the grounds of colour, race, nationality, or ethnic or national origins under the Race Relations Act 1976
61 New Zealand Government Online, http://www.govt.nz/aghome.php3?id=106 62 Irish Equality Authority, http://www.equality.ie/aboutus.shtml
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• The Disability Rights Commission, which covers discrimination on the grounds of disability under the Disability Rights Commission Act 1999 and the Disability Discrimination Act 1995. Before the 1999 Act there was a statutory National Disability Council which had powers to advise the Government but not to assist individuals in legal proceedings.
• The Equality Commission for Northern Ireland, established under the Northern Ireland Act 1998 to exercise the functions formerly carried out by the Fair Employment Commission, the Equal Opportunities Commission (NI), the Commission for Racial Equality (NI) and the Northern Ireland Disability Council. The Fair Employment Commission used to cover discrimination on grounds of religious belief or political opinion in the employment field.
The Office of the First and Deputy First Minister in Northern Ireland recently initiated a consultation on reforming the Northern Ireland legislation both to harmonise some of the substantive provisions in the existing anti-discrimination laws and to extend it to cover the new areas (including age) which will be required under the EC Equal Treatment Directive.63
The Republic of Ireland has recently adopted an integrated approach to equality and anti- discrimination issues which involves a single commission covering a wide range of areas, including age. The Irish provisions are summarised in the Northern Ireland consultation document:
3.1.5 In the Republic of Ireland equality and anti-discrimination issues are addressed in two pieces of legislation. This legislation takes an integrated approach to equality and anti-discrimination issues. The Employment Equality Act 1998 prohibits direct and indirect discrimination, harassment and victimisation in employment on grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.
Its provisions cover all aspects of employment. The Equal Status Act 2000 prohibits discrimination on the same wide range of grounds in the provision of goods, services, accommodation, disposal of property and education.
3.1.6 The Equality Authority has a similar role and function to that of the Equality Commission for Northern Ireland, providing advice and guidance to individuals who believe they have suffered discriminatory treatment. When an alleged act of discrimination becomes the subject of an investigation the Authority will refer the case to the Office of Director of Equality Investigations, although a person discriminated against on gender grounds can opt to seek
63 Promoting Equality of Opportunity. A Single Equality Bill for Northern Ireland, an initial consultation by the Office of the First and Deputy First Minister, May 2001 http://www.ofmdfmni.gov.uk/equality/seb/index1.htm
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redress directly through the Circuit Court. The Office of Director of Equality Investigations was established under the Employment Equality Act and is separate from the Equality Authority. It has quasi-legal functions in relation to investigating cases taken under equality legislation and is statutorily empowered to investigate and decide equality cases. The Director’s decisions are enforceable through the Circuit Court. Appeals against the Director’s decisions must be made to the Labour Court within 42 days of issue. The Labour Court issues legally binding determinations which may be appealed to the High Court on a point of law.64
The main arguments for and against a single equality commission are summarised in the report of the independent review of the enforcement of UK anti-discrimination legislation, published in 2000:
In our view, the main advantages of a single equality commission are that the principle of equality is given a higher status, and the agency is not likely to be marginalised as representing sectional interests to the same extent as a single issue commission, particularly if grounds affecting white men such as age and sexual orientation are included. The commission could speak with a single strong voice and give consistent advice. A single commission would assist in identifying and making the connections necessary to tackle multiple discrimination cases, avoiding duplication of resources. Moreover, if discrimination were made unlawful on additional grounds, such as age, sexual orientation, and religion or belief, it would be difficult to create yet further agencies. Administratively, there are likely to be efficiency gains. Employers in our case studies (Appendix 1), especially those with inclusive diversity policies, strongly favoured a single agency. They find it perplexing to deal with separate commissions, each with its own approach. The ORC Equal Opportunity Group said:
On the whole member companies believe that separate agencies are outmoded where a more inclusive approach to diversity is sought. Ultimately employers do not wish to deal with three (or potentially more) equality agencies in the long, term and would prefer to see only one agency established.
The main disadvantages are that particular interest groups fear that they will be swamped by other more powerful interests (e.g. ethnic minorities by women or vice versa). This point has been made to us with particular strength by the disability groups who have struggled for many years to establish a DRC. They fear that their gains will be submerged within a generalist body, and that the DRC needs time to establish itself to ensure that it is an equal partner in any future merger. It was argued that the identification of agencies with specific groups, and the perception of them as serving the needs of those groups can provide a source of strength in the inevitable political disputes that arise over funding.65 The response on this from the GMB expressed this position clearly:
64 Ibid 65 See McCrudden (1999b), at p. 1732.
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We do not believe there should be combined Commissions. Conceptually, we think it is important that the Commissions remain separate for the foreseeable future. We fear that, even with the best intentions, certain interest groups might operate at the expense of others. We are also concerned that Commissions might be merged solely for economic reasons. If this were to be the case, we think it would mean a devaluing of the work currently being carried out by the separate commissions.66
The Government is “at a very early stage of consideration” of these issues. In its evidence to the Education and Employment Select Committee on Age Discrimination in Employment, it said:
A Single Equality Act or Separate Acts?
60. We are at a very early stage of consideration. We will want to take account, amongst other things, of business views on issues of consistency and timing. We will need, also, of course, to take account of what the Parliamentary timetable allows.67
Age Concern is opposed to the early establishment of a single commission, as it fears age issues would be marginalised:
Finally there are arguments that there should not be a single commission on age equality but a universal commission taking in existing bodies. Age Concern believes that this might lead to age issues being marginalised; this has been shown by international experience where age discrimination has been perceived to have taken a “back seat” in relation to other areas of discrimination. Although we would not be averse to an all-embracing commission in the long term, we believe the thinking around the issues of age discrimination needs to be developed and it is vital to advance expertise and understanding of age now. An Age Equality Commission would be the ideal starting point to formulate this process.68
66 Bob Hepple QC, Mary Coussey, Tufyal Choudhury, Equality: a new framework, the University of Cambridge Centre for Public Law and the Judge Institute of Management Studies, 2000, paras 2.88-2.89 67 Memorandum from the DfEE, Education and Employment Committee, Seventh Report 2000-01, Age Discrimination in Employment, HC 259 68 Age Concern briefing for the second reading of the Age Equality Commission Bill on 23 November 2001.
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Appendix: Private Members’ Bills on Age Discrimination
Age Discrimination Bill, Bill 127 of 1982-83, a Private Members’ Bill introduced by George Foulkes to "provide that discrimination of an unjustifiable nature against people on the basis of their age shall be illegal and to confer duties on the Equal Opportunities Commission".69
Employment (Age Limits) Bill, Bill 88 of 1985-86, a Private Members’ Bill introduced by Ann Clwyd to "prohibit the use of age limits in job appointments, training schemes, promotion, retirement and advertising of jobs".
Employment Age Discrimination Bill, Bill 81 of 1988-89, introduced under the Ten Minute Rule by Barry Field.70 The Bill would have made it unlawful to specify actual or preferred age limits in employment advertisements.
Employment (Age Limits) Bill (HL), HL Bill 26 of 1988-89, a Private Peers’ Bill introduced by Baroness Phillips. The Bill did receive a Second Reading on 4 May 1989. The Bill, which was later introduced in the Commons by Gwyneth Dunwoody [see below] was intended to "prohibit the use of age limits in job appointments, training schemes, promotion, retirement and advertising of jobs".
Employment (Upper Age Limits in Advertisements) Bill, Bill 33 of 1990-91, a Private Members’ Ballot Bill (15th place) introduced by David Winnick. The Bill would have prohibited the use of upper age limits in the advertising of employment vacancies.
Employment (Age Limits) Bill, Bill 84 of 1992-3, introduced under the Ten Minute Rule by Gwyneth Dunwoody.71 The Bill was designed "to prohibit the use of age limits in job appointments, training schemes, promotion, retirement and advertising of jobs".
Employment (Upper Age Limits in Advertisements) Bill, Bill 18 of 1995-96, a Private Members’ Bill introduced by David Winnick, who won fourth place in the ballot. It would have banned the use of upper age limits in employment advertisements.
Age Discrimination Bill, Bill 144 of 1996-97, introduced under the Ten Minute Rule by Quentin Davies .72 The Bill would have "made it an offence to discriminate against adults on the ground of age in matters of employment, promotion, redundancy and access to public facilities, including training and education, and in matters of health care and medical services".
69 Second Reading, debate adjourned, HC Deb 6 May 1983, cc 599-606 70 HC Deb 22 Feb. 1989, cc 999-1000 71 HC Deb 17 Nov. 1992, cc 166-7 72 HC Deb 19 March 1997, cc 885-887
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Employment (Age Discrimination in Advertisements) Bill, Bill 15 of 1997-98, a Private Members’ Ballot Bill introduced by Linda Perham, who won ninth place in the ballot. It was talked out on second reading. 73 It was designed to “prohibit discrimination on the basis of age in the advertising of employment vacancies”.
Age (Prevention of Discrimination) Bill, Bill 69 of 1998-99, introduced under the Ten Minute Rule by Robert Maclennan.74 Eric Forth spoke against the Bill but leave to introduce was granted without a division. The Bill was “to prevent discrimination in employment and in other matters on grounds of age”.
Age Equality Commission Bill, Bill 159 of 1999-2000, introduced under the Ten Minute rule by Lawrie Quinn.75 Desmond Swayne spoke against the Bill but Mr Quinn was given leave to introduce it by 190 votes to 7. The bill was to “make provision for the establishment of an Age Equality Commission to advise the Government on discrimination in relation to older people”.
Age Equality Commission Bill, Bill 88 of 2000-01, introduced under the Ten Minute Rule by Lawrie Quinn.76 The Bill was to “make provision for the establishment of an Age Equality Commission to advise the Government on discrimination issues in relation to older people”.
Discrimination against Older People Bill, Bill 95 of 2000-01, introduced under the Ten Minute Rule by Roger Berry.77 The Bill was to “make discrimination against older people unlawful; to provide for the creation of an Age Discrimination Council; and for connected purposes”.
Age Discrimination Bill, Bill 98 of 2000-01, introduced by Quentin Davies under the Ten Minute Rule.78 The Bill was to “make provision in respect of age discrimination”.
73 HC Deb 6 February 1998, cc 1396-1419 74 HC Deb 23 March 1999, cc 175-178 75 HC Deb 12 July 2000, cc 873-877 76 HC Deb 25 April 2001, cc 322-324 77 HC Deb 8 May 2001, cc 24-26 78 HC Deb 9 May 2001, cc 126-128
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