Age discrimination in employment: implementing the framework directive 2000/78/EC



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© Bob Hepple, 2002.

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AGE DISCRIMINATION IN EMPLOYMENT:

IMPLEMENTING THE FRAMEWORK DIRECTIVE 2000/78/EC

A paper by Bob Hepple QC

Master of Clare College and Emeritus Professor of Law in the University of Cambridge

Presented to the IPPR seminar, 11 December 2001 at the Nuffield Foundation

The third in a series of six seminars on the IPPR project Age as an Equality Issue funded by the Nuffield Foundation

EXECUTIVE SUMMARY




  1. Action against age discrimination in employment is an essential aspect of UK employment policy. The main goals of that policy in this context are (1) to increase the participation of people aged over 50 in the labour force; (2) to reduce youth unemployment; and (3) to promote a skilled, trained and adaptable labour force.




  1. The loss of traditional job opportunities for men in former industrial sectors, the inadequacy of post-school training and work experience for young people, and the absence of opportunities for older women seeking family-friendly working patterns are substantial causes of detachment from the labour market. Another reason is discrimination related to age. This is due to negative stereotypes of older people, the fact that it suits managers and unions to achieve downsizing by offering older workers attractive redundancy packages, the reliance of managers on seniority-based pay and promotion systems, and the perception that age discrimination is legitimate because it is not unlawful.




  1. A range of important government measures has been put in place to promote increased opportunities for older and younger workers. Moreover, a Code of Practice on Age Diversity in Employment was published in 1999. However the Code is known to only a minority of employers and less than one in ten is actually using it. Action against discrimination cannot rely solely on voluntary and other promotional measures, but must be supported by an effective, efficient and equitable regulatory framework. This framework should be aimed at encouraging personal responsibility and self-generating efforts to promote age equality at work.




  1. Unfortunately, the Framework Employment Directive 2000/78/EC is rooted in an out-dated approach to discrimination law. If it is simply transposed into UK law it may at best have limited effect and at worst have some quite negative consequences. The main defects are that it lacks clarity and perpetuates a fragmented and inconsistent approach to different grounds of discrimination; it is limited to employment and occupation so placing a burden on employers which they cannot be expected to discharge unless corresponding duties are placed on providers of education, healthcare and transport; it is based only on negative prohibitions against direct and indirect discrimination and harassment rather than positive duties to promote equality; and it focuses on individualised retrospective fault-finding rather than a strategic approach. Since the Government proposes to utilise the period up to December 2006 to implement the age provisions, there is ample time to enact a single Equality Act covering all areas of discrimination, and including positive duties.




  1. The principle of equal treatment laid down in the Directive means that there must be no direct or indirect discrimination or harassment. The UK legislation should make it clear that it is direct discrimination to subject a person to a detriment on grounds of age. The so-called “age-proxy” problem (where it is alleged that another factor is a proxy for age) would be resolved by applying a “but for” test of causation: did age play a determinative role in the employment decision? The defintion of indirect discrimination should be confined to cases where it is possible to make a comparison between persons of the complainant’s age group and all other persons. Where a substantial adverse impact can be shown the employer would be able to justify the policy, practice or criterion on job-related grounds, such as physical fitness or health and safety requirements. The content of the positive duty on employers should be for them to take reasonably practicable steps to ensure that the provisions of the Code of Practice on Age Diversity are being observed by the organisation.




  1. The UK legislation should not provide a general defence of justification in cases of direct discrimination on age grounds. Instead of this, or the ambiguous provisions of Article 6 of the Directive, UK legislation should provide a non-exhaustive list of specific exceptions to the principle of equal treatment. These include genuine occupational qualifications, minimum age requirements for training or employment or employment benefits, maximum age requirements based on the training requirements of the job, clear actuarial or other evidence of significantly increased costs which would result if discrimiantion were not permitted in the circumstances, and positive action to promote the integration of older and younger people or to ensure their protection.




  1. Instead of either an outright prohibition of all mandatory retirement ages, or outright permission to continue these, a third option is advocated. This would permit a contractually agreed mandatory retirement age ( of 55 or more) that is linked to the age of admission to an occupational pensions scheme which has been approved under pensions legislation. This could be said to further the legitimate aim of encouraging planning of retirement as a form of deferred compensation. Where there is no informed consent and no occupational pension, the employer would have to justify the mandatory retirement in the factual circumstances of the case. The provisions of the Employment Rights Act that exclude the right to claim unfair dismissal or redundancy after the normal retirement age, should be repealed.




  1. The age discrimination aganst young persons under the National Minimum Wage Act, and for their protection in the Working Time Regulations can probably be justified. Employment tribunals should be given jurisdiction to remove discriminatory provisions in collective agreements, contracts and the rules of professional etc. organisations.




  1. The legislation against age discrimination should form part of a single Equality Act enforced by a single Equality Commission. In addition there should be a Human Rights Commission whose responsibilities would include the promotion of age equality. The duty on public authorities to have due regard to the promotion of equal opportunities should include age and effect should be given to this through the normal systems of best value reviews, audits and inspections. The remedial powers and procedures of tribunals should be improved in respect of age as well as other grounds of discrimination.



AGE DISCRIMINATION IN EMPLOYMENT:
IMPLEMENTING THE FRAMEWORK DIRECTIVE 2000/78/EC




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