Head to head: Age discrimination

The Employment Equality (Age) Regulations were widely predicted to cause mayhem in the UK’s workplaces. Yet in the years since their introduction on 1 October 2006, no more than a trickle of cases has reached tribunal.

Numerous research studies also show that ageist attitudes and practices continue to flourish. So what is the solution? And why hasn’t the legislation worked? More importantly, is there any hope that ageism will ever be flung out of the UK workplace?

Keith Frost is senior business manager, at the Age and Employment Network

Rachel Krys is head of communications, at Employers Forum on Age

Q What are the main problems with the age legislation?

Keith Frost As with any employment protection, the power of the legislation depends on individuals’ abilities to access justice. The recent outcome of the Bloxham v Freshfields case shows what can be done with the legislation, but that was a situation of well-heeled lawyers suing another lawyer. A lot of people don’t have the legal nous or the funds to enable them to access justice as there’s very little legal aid for them.

Rachel Krys I don’t think it is massively bad legislation. The biggest stumbling block is the retirement age. The government has to decide whether it removes the default age or reviews it – which could take years. Plus, the retirement process is cumbersome, as you have to write a letter that quotes an exact line of the legislation. One tribunal chair even said “we can’t believe this is the law”.

Q Is it too early to say whether it has been effective?

Keith Frost It takes a long time for cases to build, and the first time an employee could have registered an ET1 was January. So there’s probably a lot of traffic coming down the line that hasn’t been picked up yet. Plus, discrimination cases are time-consuming so they tend not to be scheduled that quickly. For instance, the Bloxham case took eight days.

Rachel Krys We think it’s slowly changing. There are about 200 tribunal claims being lodged every month and there’s a clear split between the employers that are aware of the issues and changing, and those with a more laissez faire approach. The problem is that while the legislation has helped raise awareness, there’s still a lot of activity that could be seen as unlawful. It’s also still the case that not one age discrimination case has actually succeeded at tribunal.

Q What bad practices still exist?

Keith Frost Ageism is soft-wired into all of us. We still tend to use age as a proxy for suitability, experience, ability and skills, and it is a flawed way of thinking. At one end of the scale, you have young models being banned from London Fashion Week because their age and body mass index makes them too skinny. Yet the same standards are not applied to a model who is, say, 28 or older.

At the other end, the discussions about Ming Campbell should have focused on his ability to lead a party and whether he was a good leader, not his age. Age is too often used as an arbitrary decision point for assessing individuals.

Rachel Krys People don’t respect experience as much as they claim to. Employers need to decouple experience from age. Five years’ relevant work experience is better than 20 years’ experience in a different role. We need to be more sophisticated about how we judge people and not base it on their skills alone.

At the same time, you don’t usually stand much of a chance of promotion in a lot of industries if you’re aged over 35, regardless of how much relevant experience you have.

Q What progressive steps are employers taking?

Keith Frost The UK economy has been relatively successful because its labour shortages have been overcome by the arrival of workers from the eastern EU. Their availability has effectively put back the tipping point where employers start fishing in the total pool of potential labour. Yet, sensible employers have realised that when Germany and other EU countries open their labour markets, a lot of eastern European workers are not going to travel this far. They realise that they can no longer recruit the same, identikit candidate they’ve recruited for the past 20 years because they’re in short supply. Instead, they have changed their mindset about who is able to do a job, and recruited from a wide group of age groups.

Rachel Krys Many employers have stopped having a set retirement age and are reaping the benefits. It takes time to implement and is a brave step, but it sends out a strong message that the organisation doesn’t tolerate age discrimination and helps generate the cultural change that’s needed. Plus, it takes the wind out of the sails of employers that claim age is a fair basis for cutting back on employees. After all, nobody would say in a period of downsizing that it’s acceptable to get rid of a woman who has just had a baby.

Q What does the future hold?

Keith Frost The legislation has laid down minimal acceptable standards. We now need to see some culture change. We have seen it happen with a lot of other discrimination issues, so hopefully age will one day be treated in the same way as gender or race discrimination.

Rachel Krys Culture change takes years. It’s more than 30 years since the race and sex acts came into force, and there is still discrimination in the workplace. The next step is to develop case studies from people who are challenging the stereotype and making that business case for much more age diversity.

We need to build a strong business case for having a mixture of ages in the workplace. At the moment, ageism is a bit like speeding: easy to get away with and you don’t mind admitting it.

Racism and sexism in the workplace are a bit more like drink-driving: totally unacceptable to everyone. We need to get ageism to the stage where it’s a bit more on that level.

An age-old story

A year ago the Department for Business, Enterprise and Regulatory Reform (the then DTI) estimated that 8,000 age-based cases would reach tribunal each year, costing about £200m. Yet the reality has been slightly different.

  • From October 2006 to the end of March 2007, there were 972 claims of age discrimination submitted to tribunals. None resulted in a favourable award.
  • The total tally for the first year has reached 3,000 – less than 40% of the DTI’s expectation.
  • The costs to employers so far are under £10m.
  • Of the 135 cases disposed of by the end of March 2007, 38% had been withdrawn 41% settled through Acas and 8% were struck out.
  • Only 17 cases reached tribunal: five were dismissed at preliminary hearings six were unsuccessful and judgment in the remaining six were awarded in default – mostly because no-one bothered to turn up.

Source: The Age and Employment Network

Age rules

While it’s raised understanding, the age regulations are yet to tackle ageism head-on

  • 86% of people know it is illegal to discriminate on the grounds of age at work, compared to 51% in 2006.
  • 59% of workers have witnessed ageist behaviour in the workplace during the past 12 months, compared to 61% before the legislation came in.
  • 30% of workers are aware of an older person getting paid more for doing the same job as a younger person.
  • 31% of staff see people being managed differently depending on their age – an increase from 23% last year.
  • 33% of employees believe ageism only affects older people.
  • 92% of people think they should have the right to work for as long as they like if they are able to do the job. Yet 21% say their employers insist on the default retirement age of 65.

Source: Employers Forum on Age

Viewpoint

Trevor Phillips, chairman, Equality and Human Rights Commission (EHRC)

With about nine million people now over the age of 65, and with this figure set to rise by a third by 2021, we will clearly be presented with an increasingly ageing workforce in the years to come.

The EHRC is the first statutory body in the UK with a specific mandate to enforce age discrimination, and it will act robustly to tackle it, where necessary.

But our task is about more than enforcing the law. Sadly, there are still workplace cultures that do not recognise and celebrate difference. EHRC research found that 75% of people interviewed think that most discrimination occurs at work, so it’s clear that the workplace is a crucial equality battleground where we need to challenge attitudes. Getting it right pays dividends.

Struggling to plug its skills gap, DIY chain store B&Q found that by staffing stores with employees over the age of 50, profits swelled and staff turnover and absenteeism plummeted.

It is vital that public policy makers and other employers rise to the challenge and explore these unprecedented opportunities to think creatively, recruit fairly and unleash potential.

Johanna Field, head of policy, British Youth Council

The regulations stipulate that you can’t discriminate against people because of their age. Yet there is a glaring exemption for the minimum wage that contravenes the spirit – if not the legality – of the regulations themselves.

We believe the three-tier minimum wage system should be abolished as doing the same job but being paid less purely because of your age is discriminatory and sends out the wrong message to people at the start of their working lives.

The only way to beat age discrimination in the workplace is to ensure people are fairly treated at all levels.

Tony Chiva, head of education and training, Life Academy

It’s impossible to know how effective the legislation has been until some case law has been developed. Companies are waiting for case law to understand the practical implications of it all.

But the difference between age legislation and other discrimination acts is that with laws such as the Disability Discrimination Act, people have a right to complain if they think they’re being treated unfairly.

At the moment, people don’t have the right to demand to stay in work after 65 if they want to and are still up to the job.

The employer can simply say thank you and goodbye with no justification.

Tell us what you think: is the age legislation working? E-mail dawn.spalding@rbi.co.uk

Compiled by Phil Boucher

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