The concept of age discrimination laws is not new; the United States has had
legislation on the subject for some years, and it was proposed in the Labour
Manifesto prior to the General Election of 1997 that the UK should follow suit.
However, perhaps conscious of a political backlash as well as practical
difficulties which would arise for a number of employers, when in power the
Government decided not to legislate but to simply issue a code of practice
entitled Age Diversity in Employment. The issue would probably not have got
much further, in legal terms, were it not for the fact that a draft directive
has now been proposed at European level combating all forms of discrimination
including age discrimination. This proposal, unveiled by the European Commission
on 25 November 1999, would require the UK to outlaw direct and indirect
discrimination on the grounds of age in "recruitment, promotion,
vocational training, working conditions – including dismissals and pay – and
membership of, involvement in, and benefits provided by an organisation of
workers or employers, or a professional body". Over the coming months, the
Member States will be negotiating the final text of the proposed directive.
Once implemented by the European Council, there will be two years in which to
implement it into English law.
Existing legal issues on age
In the UK, the only relevance age has had in employment law is with issues
concerning retirement and the now disputed rule that individuals over the
normal retiring age are not able to claim unfair dismissal. Age discrimination
became a more fashionable political topic in the early 1990s.
The code of practice, however, falls short of any significant legal
protection. It makes the point that Britain’s age profile is changing rapidly –
by 2010, for example, almost 40 per cent of the workforce will be 45 or over.
Therefore, it says, to maintain a competitive edge, organisations need to
employ an age-diverse workforce reflecting the demands of the changing
community and potential markets. The code then sets out, good practice in six
aspects of the employment cycle: recruitment, selection, promotion, training,
redundancy and retirement. The terms of the code are merely aspirational, and,
as leading employment law text book Harveys points out, unlikely to afford any
individuals any legal rights.
Nevertheless, the issue of age has started to be used as a useful argument
in tribunal decisions. Where prohibition of age discrimination has been
included in equal opportunities policies, individuals have been able to
establish a contractual right not to be discriminated against on grounds of
age. Similarly, tribunals have been prepared to accept an argument that where
redundancy selection criteria are weighted against older workers, this can lead
to an unfair dismissal. However, a failure to recruit an individual because he
or she is "too old" would give the victim no redress at all.
This may change if the proposed European directive makes headway in Europe.
Since it also includes proposals to combat discrimination on grounds of sexual
orientation, it can be expected to attract some opposition from Member States.
However, it is undeniably in step with the times and, with the increase in
majority voting for social measures in Europe, it may well be that the UK will
have no power to stop this legislation eventually applying in the UK.