Sally BrettTUC Equality Policy Officer

Diversity or discrimination? The question of age

Institute of Employment Rights, Update on Equality Law, Liverpool, 22nd October 2008

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Age Regulations are two years old• Prohibit direct and indirect discrimination,

victimisation and harassment • Provisions allowing positive action• General objective justification defence for

direct and indirect discrimination• Specific exemptions for certain employment

policies and practices e.g. NMW, redundancy, service-related benefits, Default Retirement Age of 65

• Right to request to stay on through complicated retirement procedure

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TUC view of Age Regulations

• Supported legislation to tackle ageism at work

• Challenged justifiability of some specific exemptions e.g. NMW rates, service-related benefits

• Disappointed forced retirements able to continue

• Concerns over retirement procedure and lack of reasons from employer

• Need for statutory Code of Practice on age

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Number of age claims on the rise

• DTI anticipated 8,000 cases a year• 972 cases in first six months (ETS

statistics - Oct 06 to Mar 07)• But Acas reported 2,652 age claims in

2007/8, up from 739 in previous year• Possibility of large multiple claims

concerning collective structures

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Benefits

• Swann v GHL Insurance – flexible benefits scheme with higher premium for PMI for older workers was justified

• Bloxham v Freshfields – legitimate aim to ensure sustainable pension plan that is fair to all ages; extensive consultation and communication but no less discriminatory alternatives identified

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Redundancy policies

• MacCulloch v ICI – age and service-based redundancy scheme challenged by 36-year old with comparison to 55-year old

• Loxley v BAE Systems – scheme denying contractual redundancy payments to over 60s challenged by 61-year old

• EAT ruled both schemes may have legitimate aims (e.g. rewarding loyalty, cushioning older workers, preventing workers about to retire from getting windfall) but tribunals had not properly analysed proportionality

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Termination

• Martin v SS Photay - 70-year old cleaner dismissed on grounds of age

• Court v Dennis Publishing – 55-year old selected for redundancy by company with ageist culture

• Wilkinson v Springwell Engineering – teenager dismissed after being told she was “too young for the job”

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Retirement dismissals• Seldon v Clarkson, Wright and Jakes –

compulsory retirement of partner was justified because need to provide career advancement opportunities (appeal pending)

• Hampton v Lord Chancellor – compulsory retirement age of 65 for Court Recorders was not justified (appeal pending)

• Holmes v Active Sensors – dismissal was retirement as request to stay on did not state ‘under para 5(3)’

• Johns v Solent – Court of Appeal agrees unfair dismissal claims should be stayed

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Heyday challenge to default retirement age• Age Concern sought judicial review of Age

Regulations in High Court• High Court referred very narrow questions to

ECJ • Advocate-General’s opinion:

– Directive does apply to retirement (ECJ already ruled this in Palacios case)

– Rules like the DRA can in principle be justified under Directive

• ECJ ruling and then High Court will decide if DRA is justified after (probably 2009)

• Govt. commitment to review DRA in 2011

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Impact on employer practice• Survey evidence suggests employers’ focus

is on tackling formal signs of ageism• Few proactive measures to recruit or retain

an age diverse workforce • Some employers introduced fixed retirement

ages and formal policies in response to Regs• Recent CBI survey claims a third of

employees are requesting to stay on and majority of requests granted

• Employment over state pension age has increased by 9.2% (July 2007 to July 2008)

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Flexible retirement and extended working lives

• Finance Act 2004 made flexible retirement possible

• DWP consultation suggests obstacles and uncertainty created by Age Regulations

• Employers unwilling to objectively justify flexible retirement practices

• Some employers not motivated to take voluntary positive action

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Proposals in the Equality Bill• Extension of protection from age

discrimination • Justified age-differentiated services to

continue (e.g. free bus passes, flu jabs for over 60s, targeted holidays)

• Proposals for a new Framework Directive• Phased implementation with initiatives to

tackle ageism in health and social care and working group on financial services

• Public sector equality duty to include age

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Further information

• TUC/CIPD ‘Managing Age: A guide to good employment practice’ (www.tuc.org.uk)

• DWP consultation, ‘Flexible retirement and pension provision’ (www.dwp.gov.uk)

• McNair, Flynn & Dutton, ‘Employer responses to an ageing workforce: a qualitative study’ (DWP, 2007)

• EOR, ‘Age equality policies: an EOR survey’ (November 2007)

• ‘Framework for a Fairer Future’ White Paper (www.equalities.gov.uk)