According to a report released by the University of Kent, 29% of workers claim they have been subjected to some form of age discrimination during their working lives, a figure that was far greater than the occurrence of any type of other discrimination including that based upon [***]; so will legislation stamp out the problem?
October 2006 will see the introduction of the Employment Equality (Age) Regulations in the UK. The Government has been consulting about its proposed age discrimination legislation since July 2003. They published draft Regulations in July this year, the consultation on which ended on 17 October 2005. We await publication of the final Regulations early next year.
Will the Regulations actually have the desired impact on the ageism prevalent within the workforce? If the lesson to be learned from other forms of discrimination laws is right, then it is likely that the age discrimination legislation will play some part in changing attitudes but will not be enough alone.
The experience of other countries is also inconclusive. In the United States, which has had federal age discrimination laws since 1967, there were 17,837 claims of age discrimination filed with the EEOC in 2004.
This was slightly less than [***] or race claims and slightly more than disability claims. However, many of these claims are brought by highly-paid, white, male executives on dismissal, rather than blue collar workers in recruitment, which the laws were designed to help.
Ageism is prevalent at all stages of the employment relationship, from recruitment to retirement.
The Regulations will force employers to reconsider their recruitment processes, in order to identify any age discriminatory criteria.
In future, in order to justify any such age discriminatory criterion, the employer will have to show that it has a legitimate aim for using age and that its need to achieve that aim in that discriminatory way outweighs the discriminatory impact of the age-based treatment.
By way of example, an employer which seeks young bar staff for its trendy wine bar, on the basis that this attracts clients, would have to show that the aim of attracting clients through having young bar staff outweighed the discriminatory impact of the age limit on its recruits.
It is likely to be difficult for the employer to show this. An indirectly discriminatory requirement such as, for example, a requirement that graduates must have graduated within the last three years (which would disproportionately disadvantage older applicants) would, again, have to be justified by reference, presumably, to the aim of ensuring that skills were up to date.
However, an employer would again struggle to justify this, on the basis that there is likely to be a less discriminatory way of achieving that aim, namely by assessing the currency of skills individually.
Ageist harassment will be unlawful under the Regulations. Ageist banter is today far more socially acceptable than, say, sexist or racist banter. The extent to which legislation has contributed to the social unacceptability of the latter forms of harassment may be a moot point.
However, threats of being sued should result in employers stamping down on ageist jokes and ageist birthday cards.
At the other end of the relationship, the most challenging aspect for those framing the Regulations has been the appropriate response to mandatory retirement. We have a rapidly ageing population.
Life expectancy has increased from 45 for men and 49 for women in 1901 to 76 and 81 respectively in 2002. Recent research suggests that life expectancy could reach 100 over the next two generations. Retirement ages were originally set to align with state pension ages which were set in 1925 when life expectancy was much lower.
As Adair Turner has stated in his Interim Pension Commission Report, a necessary ingredient in tackling this demographic time bomb and ensuring we do not become a country of impoverished pensioners, is to ensure that people retire later.
The Government, nonetheless, faced considerable opposition from business groups to the abolition of mandatory retirement. The compromise it came up with was for retirement at 65 to be justified but for an employer to have to justify retirement below 65.
It then promised to review this in 2011 and added a duty on employers to consider requests to stay on beyond retirement. Whilst this is likely to improve the position of the under-65s, the laws relating to mandatory retirement might actually encourage employers to dismiss people that they would otherwise have been happy to keep on beyond age 65.
Employers will only escape age discrimination and unfair dismissal claims in retiring staff at 65+ if “retirement” is the reason for terminating employment. If some employees are allowed to stay on beyond retirement age whilst others are not, showing retirement was the reason for dismissal will not be straightforward.
This could result in employers taking a safety-first approach of blanket refusals. It would be an unfortunate impact of the age discrimination laws if the over 65s found themselves less well off than they are now, particularly with many healthy years ahead.
James Davies is the joint Head of Employment & Incentives at Lewis Silkin.