Working wonders

In January 2010, statistics published by the Office for National Statistics (ONS) showed that while unemployment has fallen generally among workers in the 50-plus age bracket'š unemployment increased over the last quarter of 2009. This article looks at the state of existing legislation on age discrimination in the UK and in France to see whether it is likely that the UK will go further in its legislative attempts at combating endemic age discrimination.

Age discrimination legislation in the UK

The UK was one of the last European member states to introduce anti-age discrimination legislation under the Equal Treatment Framework Directive 2000/78. The Employment Equality (Age) Regulations 2006 came into force in England'š Wales and Scotland (similar legislation is in force in Northern Ireland) on 1 October 2006.

The regulations provide protection against age discrimination in employment'š training and adult education for people of all ages. They state that it is unlawful for an employer to treat an individual less favourably because of his or her age. This includes in recruitment'š promotion'š terms and conditions of employment'š redundancy and dismissal. But there are some exceptions and situations when an employer may be able to justify discrimination.

There is a retirement procedure which employers have to follow. Employees have the right to request staying on past the employer's retirement date. People over the age of 65 can now claim unfair dismissal'š statutory redundancy payments and statutory sick pay as the upper age limits for these are removed.

The law applies to training and education as well as employment. This includes adult learning'š further education'š higher education such as university courses and other training which provides skills related to work. But the law provides limited protection for people over 65'š particularly when it comes to recruitment and forced retirement. Employers may compulsorily retire an employee at the age of 65, without having to individually justify each decision. This is, of course, still subject to the employee's statutory right to request to continue working past 65. However, an employer may decline that request without giving reasons.

Cases from claimants alleging that they were dismissed on the grounds of their age are building up in the Employment Tribunal system. In Beck v Canadian Imperial Bank of Commerce ET/2328832/08, for example, the claimant successfully argued that he had been unfairly dismissed and subjected to age discrimination on the basis that his employers were looking to recruit 'a younger' replacement. In January, the former presenter of Countryfile issued a claim against the BBC for sex and age discrimination on the basis that she was dropped as part of a change in the format of the show. She is one of a number of TV female presenters arguing publicly against 'ageism in television'.

The Equality Bill and the default retirement age

The Equality Bill published on 27 April 2009 does not in its current draft propose changes to the law on the default retirement age (DRA). The government's official position is that the DRA is legal and objectively justified, in that it is an appropriate and necessary means of achieving a legitimate social policy objective. In September 2009, the High Court ruled in R (on the application of Age UK) v Secretary of State for Business and Skills [2009] EWHC 2336 (Admin) ('Heyday') that the DRA was indeed lawful. Following this decision, the campaign to remove the DRA has been focusing on amending the Equality Bill.

The Equality Bill is currently in the House of Lords and it was expected that a recent fast-track attempt to abolish the DRA would succeed. However, on 29 January, the House of Lords dropped the proposed amendment to the Equality Bill. Justifying the Lords' decision, Baroness Patricia Morris, shadow minister for women, said: 'We believe that there are a great many complications with removing the default retirement age, especially in this time of very bad recession. We are worried that moves to remove the DRA might have a further detrimental impact on the large numbers of young people who are out of work at present.'

The government is committed to reviewing the DRA in 2010 and is consulting on the subject. In Heyday, the High Court indicated that it could not see how 65 could remain as the DRA after the review. It is widely believed that it may not be long, therefore, before the government increases the DRA (to age 70 at least to ensure that the DRA stays ahead of the state pension age which is set to rise to 68) or removes it altogether. Solicitors should therefore start to consider how this may affect their clients in their future workforce planning. In the meantime, our neighbour across the Channel has legislated in a radical way as an attempt to tackle age discrimination in employment.

Age discrimination legislation in France

In France, there is no default retirement age and the debate has instead focused on positive action to combat age discrimination in employment. As of 1 January 2010, new, radical legislation on employing older workers came into force in France with the aim of keeping at work those who are 55 or over and getting back to work those who are over 50.

Companies with 50 or more employees will have to put in place a 'Plan d'Action Senior' addressing, for example, how recruitment of older employees is going to be possible, developing skills and qualifications and access to training for older workers.

Failure to initiate and implement a Plan d'Action Senior will result in a penalty fine being imposed of one per cent of the company's workforce total wages for each month when a plan has not been implemented '“ an expensive bill for an employer to pick up.

The Plan d'Action Senior must address the following:

• The recruitment of older employees.
• The expectation of change in professional careers.
• The improvement in working conditions and the prevention of stress.
• Developing skills and qualifications and access to training.
• Managing the end of working life and the transition between being active and retirement.
• Passing on knowledge and skill and developing teaching methods.

Employers should include statistical objectives in respect of the points set out in their plans. These objectives can be set by the employer as it feels appropriate in the context of its sector of activity.

Once finalised, the plan of action for senior employees must be put forward to the relevant government department for approval. The government department may request further information, and, if the plan is not satisfactory, it will reply within a period of three months. If an employer has not received a reply within a period of three months, the plan of action submitted will be deemed satisfactory.

The Plan d'Action Senior is unlikely to make it to the UK, if only because of the cultural reluctance in the UK to have the state mingling so directly with decisions taken by employers relating to the running of their business.

Workplace ageism: how not to justify!

The first step towards encouraging the employment of older workers in the UK is the removal of the DRA. The equalities minister, Harriet Harman, announced in January that in her view the DRA should be scrapped altogether. To encourage the employment of older workers, Harriet Harman announced new proposals to allow employees the right to request flexible working. This has immediately sparked controversy and prompted the Equalities and Human Rights Commission to advocate the extension of the right to request flexible working to all employees, not just those approaching retirement.

The combination of removing the DRA and introducing the right to request flexible working will leave employers exposed: to refuse an employee's request to work flexibly employers will have to justify their refusal on prescribed grounds. If the employer has already embraced the flexible working culture in allowing parents/carers to work flexibly, employees may argue age discrimination if they see their requests refused. If the employer shuts the door on flexible working across the board, it may be faced with claims from parents, carers and older workers!

It is now very apparent that the courts take a dim view of the justification defence in direct discrimination cases where the aim that the employer is pursuing by dismissing older employees is a purely private one '“ such as avoiding pension costs '“ rather than a form of public interest. It is therefore much harder for employers to 'justify' a dismissal on ground of age. Further, the argument that performance declines with age should be based on firm evidence rather than stereotyping (such as the argument that dentists' performance diminishes with age so that their continued employment would result in more claims against the German health insurance system).

The probable removal of the DRA and the introduction of the right to request flexible working are another clear signal to employers to ignore workplace ageism at their financial peril.