Employment (Upper Age Limits in Advertisements) Bill · 9 People Management, 11 January 1996, "Tide...

Employment (Upper Age Limits inAdvertisements) Bill

[Bill 18 of 1995/96]

Research Paper 96/19

31 January 1996

David Winnick, who won fourth place in the ballot for Private Members' Bills in November1995, has introduced a Bill to ban the use of upper age limits in employment advertisements.It is due to have its Second Reading Debate on 9 February 1996. Amongst other things, thisResearch Paper looks at the extent of age discrimination in advertisements; the arguments forand against legislation; Government policy; and provisions in other countries. An Appendixcontains relevant statistics.

Julia LourieBusiness & Transport Section

House of Commons Library

Library Research Papers are compiled for the benefit of Members of Parliament and theirpersonal staff. Authors are available to discuss the contents of these papers with Membersand their staff but cannot advise members of the general public.

CONTENTS

Page

Summary 5

I The Bill 6

II Evidence of Discrimination 6

III Effects of Discrimination 8

IV Previous Bills 9

V Government Policy 10

VI Other Parties' Policies 13

VII Pros and Cons of Legislation 14

VIII European Community 17

IX Legislation Ab road 18

X Further Reading 22

XI Statistical Appendix and Commentary1 23

Tables 1 and 2: Economic Activity by AgeTables 3 and 4: Unemployment and Duration of Unemployment by AgeTable 5: Population Projections to 2006 by AgeTable 6: International Comparisons

1 Contributed by Jane Dyson, Economic Policy and Statistics Section


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Summary

• David Winnick, who won fourth place in the ballot for Private Members' Bills inNovember 1995, has introduced a Bill to outlaw upper age limits in employmentadvertisements.

• The Bill is but the most recent in a long series of Private Members' Bills with similaraims. So far none has succeeded.

• Numerous surveys find that a high percentage of job adverts contain age limits, oftenexcluding those over 40 or 45.

• Many argue that, by excluding older applicants, employers deprive themselves of avaluable resource and a balanced workforce.

• The Government, while deploring age discrimination, argues that a campaign ofpersuasion is more likely to be effective than legislation.

• The Labour and Liberal Democrat parties support legislation.

• Some argue that if age limits in advertisements were banned by law, employers whowanted to recruit from a particular age group would nevertheless do so. Others arguethat legislation, like the sex and race legislation, would have an important symboliceffect and would provide support to those who wished to tackle age discrimination.

• The European Community has adopted a Resolution on Older Workers but continuesto use upper age limits in advertisements for its own staff.

• The USA, Canada, Australia and New Zealand all have anti-age discriminationlegislation which covers most aspects of employment, including recruitmentadvertising. France has legislation banning age limits in private sector jobadvertisements. There is some dispute over how effective this legislation is.

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I The Bill

David Winnick, who won fourth place in the ballot for Private Members' Bills on 23November 1995, has introduced a Bill to prohibit the use of upper age limits in theadvertising of employment vacancies.2 He sees his Bill as "a first step, and only a first step,in combating age discrimination".3

The Bill will:

• make it an offence "to publish or cause to be published an advertisement for employmentwhich specifies an actual or preferred upper age limit for a job". [Clause 1]

• exempt advertisements for employment "where there are physical, medical or other similargrounds on the basis of which it would be reasonable for any person to conclude that thejob in question could not be performed by persons who had passed an age limit specifiedin the advertisement". [Clause 2]

• provide that anyone convicted of an offence shall be liable on conviction on indictmentto a fine and on summary conviction to a fine not exceeding level 4 on the standard scale(£2,500 at present). This fine will escalate at a rate of up to one-tenth of level 4 for eachday the offence continues. [Clause 3]

II Evidence of Discrimination

It is widely believed that employers discriminate against older workers, both in recruitmentand in dismissals, a view which is supported by numerous surveys. For example:

• a survey by Labour Research of 5,368 advertisements for jobs in newspaperspublished in one week in November 1994 in 11 British cities found that 46%effectively excluded applicants aged under 25 or over 40. Where employers expresseda preference for a particular age range, 87% of the adverts excluded the over-40s.4

• an earlier study for the Equal Opportunities Review monitored 4,043 jobadvertisements in the Sunday Times, Personnel Management, and four London "free"

2 Employment (Upper Age Limit in Advertisements) Bill, Bill 18 of 1995/96

3 Press Association, 1 December 1995, "MP in bid to outlaw ageism"

4 Labour Research, Jan 1995, "Jobs bias against young and old"

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magazines over a six month period from November 1991 to May 1992. Of these, 30%stated an age preference, and of these, 79% specified an age range under 45.5

• a survey carried out among the Institute of Employment Consultants' (IEC) 2,000strong membership between December 1994 and January 1995 found that 60% ofcurrent vacancies contained an age-related restriction. While 74% of employersactively recruiting were seeking candidates in the 21-30 age range, 57% of IECmembers identified the 50-plus age group as the least desirable among corporateclients.6

• the Employment Service conducts periodic sample surveys of age restrictions onjobcentre vacancies. The survey published in June 1994 found that age restrictionswere placed on 28% of all vacancies. This was an improvement on 1990 when 39%of vacancies had restrictions. Guidance to Employment Service staff, issued in March1994, instructs staff in jobcentres to challenge age restrictions placed on job vacanciesand to try to persuade employers to consider jobseekers on their merits. Whereemployers insist on imposing limits, they are "reluctantly accepted". However,jobcentre staff are encouraged to approach employers on behalf of otherwise suitablejobseekers who fall outside the advertised limit.7

• an extensive postal survey across virtually all industrial sectors of 304 companies with500 or more employees found that 43% still view age as an important factor in staffrecruitment. Some 15% openly specified a maximum age in advertising the mostcommon posts in their organisations and more than 25% considered people "too old"at 50.8

• a study conducted for People Management by advertising agency Barkers HumanResources in November 1995 found that 11% of job adverts in three qualitynewspapers specified age. From January 1996, People Management, which is thejournal of the Institute of Personnel and Development, has refused to publishrecruitment advertisements that include age limitations. In 1995, the value of suchadverts in PM amounted to £300,000.9

Discrimination is not always as overt as an advertisement specifying an age range. Manyolder unemployed people feel certain that their age is the reason they have been turned down

5 Equal Opportunities Review, No 48, March/April 1993, "Age discrimination - no change"

6 Equal Opportunities Review, No 61, May/June 1995, "Up to 60% of job vacancies contain an age bar"

7 HC Deb 12 June 1995, cc390-391W

8 Report of Philip E Taylor and Alan Walker, Work, Employment and Society, December 1994, in EmployeeDevelopment Bulletin 62, February 1995, "Employers still cautious about hiring older workers"

9 People Management, 11 January 1996, "Tide turning against ageist job adverts"

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for jobs, even if this is not explicitly stated. In one study of 274 unemployed people, morethan three-quarters of the over-40s identified age as one of the reasons for their failure to geta job, while only one-quarter of those under 40 did so.10 Nearly half of the employersinterviewed for an Economic and Social Research Council study admitted that age was animportant consideration in recruitment.11 A recent survey ( by recruitment consultants, AustinKnight) of more than 1,000 people working for eight major employers found that 39.4% ofthose over 40 believed they had experienced age discrimination.12

The Bill concerns recruitment, but, when it comes to redundancies, older workers are nearlyalways targeted. A study of age discrimination against older workers in the EuropeanCommunity found that "increasing numbers of workers aged over 55, or 50, are obliged or'persuaded' to leave work early - between 5 and 15 years before official retirement age. Theirearly exit is usually decided on grounds of age regardless of individual abilities or health."13

There are, of course, many reasons for this, including the availability of early retirementpensions, but this goes beyond the scope of this paper.

III Effects of Discrimination

Richard Worsley, director of the Carnegie Third Age Programme, has argued that byexcluding older people from consideration, employers accept stereotypes and deprivethemselves of a pool of talent as well as demoralising older people looking for work:

"Those affected by ageism find that it is no less unfair thanother forms of discrimination, and the frustration and resentmentare just as severe............Thinking in stereotypes and takingshort cuts through personnel systems will not help a business toobtain a diverse workforce with a range of age andexperience...........After all, what is so special about a processengineer between the ages of 28 and 35? A corporate lawyerwho must not be older than 38?...........Employers often assumethat older people are too old to train, unlikely to stay longenough to justify the investment in them and more inclined toshort term absence. The inadequacy and irrationality of mostof these pretexts is self-evident. For example, labour turnoveris actually lower among employees over 50 than among their

10 Training Tomorrow, May 1994, "Over 40's need not apply"

11 Employment Gazette, August 1993, "Employers and Older Workers"

12 People Management, 22 January 1996, "Ageism hits one-third of workers"

13 Eurolink Age, "Age Discrimination against older workers in the European Community" , 1993, ExecutiveSummary

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younger counterparts, and the incidence of short term sicknessis no higher...........Those making appointments for jobs thatreport to them may also be reluctant to appoint older peoplewith greater experience who might threaten their owncompetence and authority............For relatively young personnelstaff to whom the responsibility for large scale recruitment isoften entrusted, there may be a temptation for them to recruitother employees in their own image"14

More generally, the Institute of Personnel Management, in a major study, has drawn attentionto some of the adverse effects of "aggressive deselection of the over-fifties" - "distortions inthe age distribution and profiles of organisations, often with whole generations beingremoved" and the loss of some of the "best and most experienced people, with a consequentloss of continuity and experiential learning":15

The UK workforce is 'greying' and by the turn of the centuryfour out of ten people of working age will be over 45 years ofage. The implications of this demographic factor have beenmasked by the recession, which has forced organisations tofocus on short-term survival issues rather than long-termstrategic planning. Attention has focused on labour forcereductions and the management of processes to achieve suchreductions. Because of the negative, apprehensiveorganisational climate created by the recession and consequentredundancies, the traditional human resource (HR) approach todownsizing tends to focus on 'last in, first out', voluntaryredundancies and early retirement. Such policies can lead todistortions in the age distribution and profiles of organisations,often with whole generations being removed. The main resultbeing an aggressive deselection of the over-fifties. During theprocess, organisations may lose some of their best and mostexperienced people, with a consequent loss of continuity andexperiential learning. Increasing economic inactivity amongthose displaced, especially those early retired, has a profoundknock-on effect on the national economy.

IV Previous Bills

There have been a number of other attempts by backbench MPs to introduce legislationbanning discrimination on age grounds, though none have made much progress. The mostrecent are:

14 People Management, 11 January 1996, "Only prejudices are old and tired"

15 Institute of Personnel Management, "Age and Employment. Policies, Attitudes and Practices", 1993, p 1

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1. Employment (Age Limits) Bill, Bill 84 of 1992/3, introduced under the Ten MinuteRule by Gwyneth Dunwoody [HC Deb 17 Nov. 1992, cc 166-7]. The Bill wasdesigned "to prohibit the use of age limits in job appointments, training schemes,promotion, retirement and advertising of jobs".

2. Employment (Upper Age Limits in Advertisements) Bill, Bill 33 of 1990/91, a PrivateMembers' Ballot Bill (15th place) introduced by David Winnick. The Bill would haveprohibited the use of upper age limits in the advertising of employment vacancies.

3. Employment (Age Limits) Bill (HL), HL Bill 26 1988/89, a Private Members' Billintroduced by Baroness Phillips. The Bill did receive a Second Reading on 4 May1989. The Bill, which was later introduced in the Commons by Gwyneth Dunwoody[see (1) above] was intended to "prohibit the use of age limits in job appointments,training schemes, promotion, retirement and advertising of jobs".

4. Employment Age Discrimination Bill, Bill 81 of 1988/89, introduced under the TenMinute Rule by Barry Field [HC Deb 22 Feb. 1989, cc 999-1000]. The Bill wouldhave made it unlawful to specify actual or preferred age limits in employmentadvertisements.

5. Employment (Age Limits) Bill, Bill 88 of 1985/86, a Private Members' Bill introducedby Ann Clwyd to "prohibit the use of age limits in job appointments, trainingschemes, promotion, retirement and advertising of jobs".

6. Age Discrimination Bill, Bill 127 of 1982/83, a Private Members' Bill introduced byGeorge Foulkes to "provide that discrimination of an unjustifiable nature againstpeople on the basis of their age shall be illegal and to confer duties on the EqualOpportunities Commission" [Second Reading, debate adjourned, HC Deb 6 May 1983,cc 599-606].

V Government Policy

The Government, whilst deploring age discrimination, has always argued that legislationwould not solve the problem:16

Mr. Alex Carlisle: To ask the Secretary of State forEmployment what plans he has to introduce legislationto end age discrimination in employment recruitment;and if he will make a statement.

Miss Widdecombe: We are well aware that someemployers discriminate on age grounds. This is wastefuland shortsighted. However, legislation does not offer a

16 HC Deb 4 Nov. 1993, c 434W

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satisfactory solution. If this country is to prosperemployers must, as far as possible, be free to managetheir own affairs. Legislation to regulate their behaviourcan only be appropriate, therefore, if: (a) it would solvethe problem, and (b) it is the only solution. Experienceabroad confirms that legislation against agediscrimination meets neither of these criteria.

The right approach is to persuade employers of thebenefits of treating people on merit, regardless of age.Through the work of our advisory group on olderworkers this is just what we are doing. The recentlaunch of "Getting On", offering employers a five-pointplan to avoid ageism, demonstrates our commitment topromoting the interests of older people at work.

Miss Widdecombe added to these arguments in her reply to Richard Ottaway's adjournmentdebate on 23 May 1995 in which he argued that the voluntary approach had failed and thatthe time had come for legislation:

"My hon. Friend the Member for Croydon South proposedlegislation as the answer. I disagree, but I do not do solightly or because of some preconceived notion. Wecarefully studied some 20 countries, and lookedparticularly at those which have some form of anti-ageismlegislation. We particularly studied the United States,which has just about the most comprehensive anti-ageismpackage of them all. The United States has approximatelythe same percentage of unemployed older workers asBritain, so that legislation is not delivering. We took theviews of people in those countries with legislation, andtheir view was that it was not delivering.

I am not interested in cluttering up the statute book for thesake of it. I want to persuade employers to change theirminds and see the error of their ways. That is what hasinformed my "Getting On" campaign. To put it cynically,if the way to convince an employer of the desirability ofdoing something is by commercial advantage, then allemployers should be convinced of the advantages of amixed-age workforce."17

Most recently, Cheryl Gillan, the junior Minister now responsible for policy on older workers,replied to a PQ from David Winnick asking for her policy on legislation to ban upper agelimits in advertisements:

I have no evidence which suggests that such legislationwould have any effect on employment. The Government

17 HC Deb 23 May 1995, c 817

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remain convinced that the way to combat agediscrimination is through persuasion.18

Despite its opposition to anti-discrimination legislation, the Government has been conductinga vigorous campaign to persuade employers of the benefits of employing older people. InDecember 1992, the Government established an advisory group on older workers, chaired bya Minister, "to encourage employers to abandon age discrimination in all of their personnelpolicies, including recruitment and training" and to "spread good practice, building on theresults of research and the experiences of employers themselves."19 This Committee is nowchaired by Cheryl Gillan, Junior Minister at the Department for Education and Employment.In March 1994, the Employment Department launched the first in a series of booklets onageism and how to counter it. The booklet, called "Getting On", contains many illustrationsof how particular companies and public bodies have benefited from positive policies towardsolder workers.20 In January 1995, the second booklet, "Too Old.....who says? Advice forOlder Workers" was launched. This booklet gives practical advice about finding work,training and changing jobs.21 Most recently, the Department for Education and Employmenthas published a booklet, "Age Works", which is intended to help recruitment agencies andemployment businesses "promote the older candidate to client employers who are seeking toimpose age limits on job vacancies".22 In her introduction to the booklet, Cheryl Gillan says:

"The Government is opposed to age discrimination. It urges all employers to join thegrowing number who have voluntarily discontinued this form of discrimination. Theseemployers are benefiting through better service, lower staff turnover, experience,increased customer satisfaction and bigger profits."

As well as launching these booklets, the Employment Department has been participating ina series of seminars for employers, designed to set out the advantages of an older workforce.The seminars have been run in conjunction with the Carnegie Third Age Programme, theIndustrial Society and the Policy Studies Institute. In August 1995, the Carnegie Third AgeProgramme organised a statement by 93 leading British companies that they either did not,or would no longer, use age limits in their recruitment advertising. Among the employerswho do not use age limits in their recruitment advertising and who have equal opportunitiespolicies which cover age are Allied Dunbar, Bovis, Lucas, Marks and Spencer, Midland Bank,TSB and W H Smith. Among those pledged to end such discrimination are Costains,Bradford and West Building Society, Mercury Communications and Unigate.23 However, this

18 HC Deb 22 January 1996, cc 76-77W

19 Dept of Employment Press Release, 2 December 1992, "Membership of Advisory Group on Older WorkersAnnounced"

20 Employment Department, "Getting On. The Benefits of an Older Workforce", March 1994

21 Employment Department, "Too Old.....who says? Advice for Older Workers", January 1995

22 DfEE, "Age Works", January 1996

23 Equal Opportunities Review, No 63, September/October 1995, "Employers pledge to end age bias"

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represented only about one in five of the organisations approached and Richard Worsley,director of the programme, has argued that if more employers do not follow this example,pressure for legislation will grow. There is now legislation on sex, race and disabilitydiscrimination so that age is now the "only major cause of discrimination not covered bylaw".24 The Institute of Personnel Management has issued a Statement on Age and

Employment which includes the following advice on advertising:25

"The use of age-related criteria or age ranges in job advertisements is notrecommended unless clearly identified as positive action to attract more individualsfrom an under-represented age group. It is important not to use age in jobadvertisements to exclude people in particular age groups. The purpose of jobadvertisements is to attract the best qualified candidates for job performance. It doesnot make good business sense to deliberately exclude suitably qualified candidates onthe basis of age."

In October 1995, the government announced that it had commissioned an independentorganisation to carry out a comprehensive national survey to find out what action employersare taking to overcome age discrimination in the workplace. The report is due in April1996.26

VI Other Parties' Policies

The Labour Party's Manifesto for the 1992 General Election said that the party wasconsidering anti-age discrimination legislation:

"Anti-discrimination law will be strengthened and we will consider as part ofthat law outlawing discrimination in employment on the grounds of age."27

Since then, this seems to have hardened into a firm commitment. In a letter to theAssociation of Retired Persons over 50, Ian McCartney, one of the party's employmentspokesmen, said:

24 Financial Times, 30 August 1995, "Business counts the cost of employing older workers"

25 Institute of Personnel Management, "Statement on Age and Employment", June 1993

26 DfEE Press Release, 3 October 1995,"Positive Steps to overcome age discrimination"

27 It's time to get Britain working again, Labour's Election Manifesto, April 1992,

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"the next Labour Government will introduce legislation to make agediscrimination illegal, just as discrimination on the grounds of race and sex aretoday."28

Harriet Harman, at the time the shadow employment minister, supported the pledge whichwould include a ban on job advertisements with age limits.29

The Liberal Democrat Manifesto for the 1992 General election promised to:

"Fight discrimination by incorporating the European Convention on humanrights into UK law and then extending it into a full UK Bill of Rights. Thiswill reinforce existing protection in British courts against discrimination ongrounds of sex, race, age, disability, religion or sexual orientation. We will setup a Commission of Human Rights to assist individuals to take legal action incases of discrimination or other breaches of the rights guaranteed in theConvention."30

David Chidgey, Liberal Democrat training and employment spokesman wrote to the Timesthat the Liberal Democrats had committed themselves to outlawing age discrimination in theirpolicy paper, Retirement with Dignity, published in August 1993. This stated that the partywould "entrench equal rights for older people by outlawing discrimination on the basis ofage."31

VII Pros and Cons of Legislation

The Government has made the case against legislation in terms of its likely ineffectivenessand the desirability of keeping interference in relations between employers and theiremployees to a minimum. [See above].

Others, including some recruitment consultants, have gone further and argued that "age isessential for choosing whether people are suitable for specific roles". If age limits inadvertisements were banned, recruiters might be forced to place "deceitful advertisements".32

Some employers might feel the need to impose age limits because they want to maintain aparticular age profile in their organisation. Others might have economic reasons for wantingto employ younger workers, who can be less expensive.

28 Equal Opportunities Review, No 64, November/December 1995, "Labour to outlaw age discrimination"

29 Financial Times, 7 September 1995, "Labour reaffirms age discrimination pledge"

30 Changing Britain for good, The Liberal Democrat Manifesto 1992

31 Times, 13 September 1995

32 Times, 14 September 1995, "Why we need age barriers"

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The Third Age Programme recognised fears that "legislation leads to costly administrationand litigation", so proposed that it should only be used very much as a last resort.33

These views are contested by many commentators who argue that legislation would be moreeffective than persuasion in changing attitudes, that it would be of symbolic importance andthat it would give individual older workers themselves the power to take action againstdiscrimination. For example, Keith Handley, Chairman of the Metra Campaign Group onOlder Workers, has set out the arguments for legislation as follows:34

Firstly, of course, legislation would raise the issue of age discrimination tothe same level of importance and public awareness as race and sexdiscrimination. There is no doubt that, while the Race Relations Act 1976 andthe Sex Discrimination Acts 1975 and 1986 have not provided a total solutionto discrimination, they provide an essential legal backstop to many initiatives.There is a strong view that legislation against age discrimination would have asimilar effect.

Legislation would also demonstrate society's disapproval of morallyunacceptable behaviour. It is fundamentally wrong to disadvantage people simplybecause of their age, yet, as the letter from Martin Simpson on page 17 of thisissue shows, this belief is built into the culture of so many of our organisations.If legislation could change behaviour, attitude changes might follow.

Peter Warr's third argument was about the concept of giving personnel peopleand other organisational influencers a 'weapon' with which to 'influence' theircolleagues who demonstrate discriminatory attitudes against older workers. Thisis similar to the way the Race Relations and Sex Discrimination Acts are usedby personnel people in persuading colleagues to change their behaviour if nottheir attitudes.

Another argument is in terms of older workers themselves. If legislation werein place older people (like black people and women) would be empowered totake action against organisations as both employees within an organisation or jobapplicants from outside. At present they have no redress against unacceptablebehaviour.

Finally, legislation could help organisations to become more effective byreversing the current trend of throwing away valuable and experienced resources,which surely must contribute to the UK's present economic losses.

A common theme of all the recent research is that it has revealed widespreadage discrimination in recruitment, training and promotion based on misleadingstereotypes of older workers

On their own, of course, laws cannot put an end to age discrimination,although, just as the Race and Sex Discrimination Acts have had decided effectsin changing people's behaviour, I have no doubt that anti-age legislation wouldhave the same effect.

Legislation would start to emphasise a more positive view of older workersand would begin to change the behaviour of organisations towards theiremployees and prospective employees born before 1953.

33 Equal Opportunities Review, No 60, March/April 1995, "Profile: Richard Worsley, Director, Carnegie ThirdAge Programme"

34 Personnel Management, May 1993, "The case for legislation on age discrimination"

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In the final analysis, therefore, I do not think that self-regulation and 'bestpractice' advice will on their own lead to the elimination of age discrimination.Now is the time for a wide-ranging Act to be passed which will outlaw all formsof age discrimination in employment.

In a People Management survey of 30 recruitment advertising agencies, 70% said theGovernment should legislate against age discrimination. They believed that employers shouldbe prevented from inserting age-related criteria into job advertisements as well as wider typesof discrimination.35 Steve Halford, managing director of Barkers, is quoted as saying:

"In an ideal world employment discrimination, whether over age, race orgender, would be dealt with as a training issue inside the organisation. ButI have seen too many companies operating overt or covert age discriminationand I think the only way forward is to legislate."

Richard Worsley has summed up the discussion in the compulsion versus persuasion argumentin a recent article in the People Management journal, which also makes the case forcombining responsibility for dealing with all forms of discrimination in one agency:36

Employers have long argued that better resultsare likely to be achieved by voluntary regulation.It is an argument that puts a heavy responsibilityon employers to prove their concern through theiractions.

Other reasons for opposing legislation are thatit would involve an expensive enforcementbureaucracy, that it would be hard to frameeffective regulation, that covert discriminationwould be extremely difficult to prove and thatregulation might simply remove the most obviousforms of discrimination without dealing with theunderlying bulk of the problem.

But the history of race and sex legislationshows us that the passing of legislation was animportant milestone in the battle against theseforms of discrimination. The law does not alwayshave to be applied to produce the desired effect.

We met many managers who sympathisedwith both sides of the argument: they werereluctant to see greater regulation of their affairs,but at the same time they had doubts aboutwhether age discrimination would ever be giventhe same priority as other forms of prejudicewithout legislation.

35 People Management, 15 June 1995, "Agencies believe legislation must combat ageism"

36 People Management, 11 January 1996, "Only prejudices are old and tired"

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We found widespread support for a moreintegrated approach to equal opportunities, bothwithin businesses and in governmental activity.The present arrangements developed in apiecemeal fashion, and are continuing to do so.

But surely it is both expensive and inefficientto continue to have three separate agenciesdealing with discrimination on grounds of race,sex and now disability, different bases ofoperation for each, separate statutes for eachcause and with no statute or agency concernedwith age. As one employer put it: "Employerscannot afford to take a fragmented approach toequal opportunities; why should government doso?"

VIII European Community It may be that European Community initiatives will have an impact on ageism in the UK.The Commission White Paper on "European Social Policy - a Way Forward for the Union"37

contained a section on the economic and social role of older people and the "WorkProgramme for 1995"38 announced that one of the main new initiatives and legislativeproposals would be a "Community instrument to support actions relating to older people."At its meeting on 29 June 1995, the Labour and Social Affairs Council adopted a Resolutionon Older Workers which makes recommendations on such matters as vocational retraining andphased retirement as well as non-discrimination. The resolution, which has no legal force,calls on Member States to :

"9. Take appropriate measures, based on the requirements of the differentlabour markets, to:(a) eliminate any legal and administrative obstacles to the employment ofolder workers;(b) make employers aware of the individual or collective consequences ofdismissing older workers;(c) facilitate the return to work of the older long-term unemployed through aidfor recruitment and through genuine vocational retraining;(d) reinforce the efforts of the bodies in charge of placement policy to retrainand reintegrate the older unemployed;(e) where the state acts as employer, give positive examples of getting olderworkers back to work and keeping them in work."

37 COM(94) 333

38 COM(95) 26

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Eurolink Age conducted a comparative analysis of "Age Discrimination against older workers

in the European Community" for the European Year of Older People and Solidarity betweenthe Generations (1993). This recommended a European-wide ban on age limits in recruitmentadvertisements and that all countries should introduce legal protection against dismissal orredundancy on grounds of age alone for older workers up to retirement age.39 It is unlikely,however, that the EC would go this far. There is no obvious provision in the Treaty underwhich such legislation could be introduced, and the Council resolution adopted in June 1995is very general and exhortatory in nature. There is a possibility that the Inter GovernmentalConference will revise the Treaty of Rome (as amended) to include a general articleprohibiting discrimination on several grounds, including age.40

To a certain extent, the EC's authority in urging an end to discrimination against olderworkers is undermined by their own policy of placing strict age limits on applications to manyposts in the Commission.41 Recent advertisements in the Official Journal state thatinterpreters "must have been born after 24 March 1959";42 typists "must be over 20 and under36 years of age";43 administrative assistants "must have been born after 26 June 1959";44 andcandidates for three principal administrator posts at the European Agency for the Evaluationof Medicinal Products (London) "must have been born after 1 July 1950".45

IX Legislation Ab road

Research commissioned by the Department of Employment to provide An InternationalOverview of Employment Policies and Practices towards Older Workers provides a usefulsummary of age-related anti-discrimination legislation in other countries and itseffectiveness:46

Legislative protection against age discrimination takes many formsincluding: protection under national constitutions and provisions under labourlaw, as well as specific, age related anti-discrimination legislation. There is alsoa distinction between measures to ban compulsory retirement and actions toinclude age in anti-discrimination legislation. Anti-discrimination provisions havevaried in terms of the focus of the measures (including specific concerns such

39 Eurolink Age, op cit

40 Economist, 27 January 1996, "The Economics of Ageing" Survey, p 7

41 Times, 22 June 1992, "Britain to fight EC jobs ban on the over-40s"

42 OJC 32 A/5, 8 February 1995

43 OJC 170 A/8, 6 July 1995

44 OJC 120 A/10, 16 May 1995

45 OJC 121 A/2, 17 May 1995

46 Employment Gazette, April 1995, "Employment Policies and practices towards older workers: an internationaloverview"

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as the use of age limits in advertising) and a wider range of employmentconcerns (such as fringe benefits, insurance and other conditions). Only a smallnumber of countries, however, have enacted age-related legislation (USA,Canada, France, Australia, New Zealand and Spain).

In some European countries the principles of equality and a right towork enshrined in constitutions forms the basis for prohibiting compulsoryretirement. In Greece, this has been reinforced by case law. Labour law has alsobeen used to provide protection against mandatory exclusion from employmenton the basis of age. In Austria, for example, employers are required to obtain theagreement of the workplace shop steward if they wish to dismiss an olderemployee.

Measures to prevent the automatic exclusion of older workers from thelabour force after a certain age have been implemented in parallel with generaltrends to early retirement. Thus, it can be noted that, at the same time as aconsensus was being developed between employers, trade unions, governmentand employees towards early exit of older people to assist in restructuringprocesses, there has been a backlash against compulsory retirement byemployers.

The USA has the most longstanding provisions, introduced under theAmerican Age Discrimination in Employment Act of 1967. The scope of thelegislation is broad: not only does it cover recruitment and dismissal, but alsojob referrals, promotion, employer benefits, and other employment practices suchas union membership. Amendments over time have widened the Act to coverprivate and public sector workers over 40 years of age. The Act applies to largerorganisations such as employers with over 20 workers and labour organisationswith over 25 members.

Legislation is also relatively comprehensive in New Zealand and partsof Australia. In Ireland, existing anti-discrimination provisions are likely to beamended in the near future to include age. Limited age-related, anti-discrimination legislation applies in Canada (in relation to employment andservices in the government sector) and France (in relation to employmentadvertising).

Age discrimination is but one factor affecting employers' recruitmentand retention decisions. Other factors cited in the extensive literature on thisissue range from firms' overall economic performance and internal personnelpractices to job losses resulting from industrial restructuring. On a personallevel, individuals' health problems or their lack of qualifications may impactupon their ability to continue working. Labour force participation may also beaffected by criteria regarding pension rules.

Although participation rates are an outcome of legislative effects, theyreflect a wide range of internal and external factors, not least of which is theindividuals' motivation. This is clearly demonstrated by the trend towardsincreased participation of older women, which is a reflection of a general trendtowards increased female participation rather than any specific older workermeasure. Nevertheless, comparing older workers' participation rates acrosscountries studied, it would appear that these are not markedly higher in countrieswhere age-related, anti-discrimination legislation was introduced.

A number of commentators concluded that anti-discriminationlegislation has done little to change overall employer practices or attitudes. Olderworkers in the USA, however, may have been protected from indiscriminateredundancies in the face of employer restructuring in the 1980s; researchindicates that job losses were more evenly spread across age groups. There was

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some evidence from the USA to show that legislation can have a positive effectat the level of the individual firm by causing employers to reconsider jobevaluations and descriptions and to use objective rather than arbitrary agecriteria.

These conclusions have been used by the Government to support their view that anti-agediscrimination legislation is ineffective.47 However, others have queried such firm conclusions"in view of the fact that the research review states that it did not attempt 'any systematicevaluation of the outcomes of these measures', and that it highlights the difficulty of isolatingthe impact of any one measure on the employment of older workers."48

Legislation on Advertisements

As far as legislation to outlaw age limits in job advertisements is concerned, France haslegislation which prohibits private sector employers from stating age limits in theiradvertisements. The measure was adopted in 1986 and can be found in Article L311-4, Code

Du Travail. According to a Eurolink Age report, "in practice, this measure is not enforcedand largely ignored by employers".49 In a random survey of issues of Le Monde in 1994, theEuropean Industrial Relations Review found that some 30% of private sector jobadvertisements stated maximum age preferences or limits.50

The legislation in those countries which have broader anti age discrimination laws also coversrecruitment advertisements. In the USA, the Age Discrimination in Employment Act 1967(ADEA) prohibits any "preference, limitation, specification or discrimination" based on agein any advertisements or notices for employment. Thus phrases such as "age range 25 to 30","young", "college leaver" and "boy" or "girl" are unlawful.51 The ADEA (as amended)prohibits age-based discrimination against individuals aged 40 and above. In Canada, theCanadian Human Rights Act, which came into effect in 1978, makes it unlawful "to use orcirculate any form of application for employment, or in connection with employment orprospective employment, to publish any advertisement or to make any written or oral inquirythat expresses or implies any limitation, specification or preference based on age."52 In NewZealand, it has been unlawful since 1 April 1992 to discriminate on grounds of age in all

47 Employment Department Press Release, 4 July 1994, "Employment Minister welcomes internationalemployment review: 'Anti-ageism legislation does not work' "

48 Equal Opportunities Review, No 57, September/October 1994, "International review of policies towards olderworkers"

49 Age discrimination against older workers in the European Community, by Elizabeth Drury, Eurolink Age,1993

50 European Industrial Relations Review, 247, August 1994, "Age discrimination in Europe"

51 Equal Opportunities Review, No 25, May/June 1989, "Age discrimination: over the hill at 45?"

52 Ibid

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aspects of employment. The statutory authority is the New Zealand Human Rights

Commission Act 1977 (as amended). The age discrimination provisions apply to peoplebetween school leaving age (15) and the age at which they can claim national superannuation(61). Under the Act, it is also unlawful to advertise a job in a way which discriminates onthe basis of age. One of the first cases under the amended law concerned an employer whoadvertised in a newspaper for a "young enthusiastic person". One job applicant, aged 48, wasturned down as being "over the hill". The Human Rights Commission upheld the applicant'sage discrimination complaint.53

A number of states in Australia have legislation dealing with age discrimination inemployment. In New South Wales the Anti-Discrimination Act 1977 was amended in 1993to make it unlawful for an employer to discriminate against a person on grounds of age inmost aspects of employment, including "the arrangements (he) makes for the purpose ofdetermining who should be offered employment".54 In Queensland, the Anti-DiscriminationAct 1991 prohibits discrimination on the basis of age in work or in work-related areas. InSouth Australia and Western Australia their respective Equal Opportunity Acts 1984 wereamended in 1992 to include discrimination on the ground of age. The provisions are similarto those applying in New South Wales. In the Northern Territory , the Anti-Discrimination

Act 1992 deals with discrimination in employment on grounds of age. It commencedoperation in August 1993. Its provisions are similar to those applying in New South Wales,though it is permissible to discriminate by imposing a standard age for starting work or astandard retirement age.55 Often, the anti-discrimination and equal opportunity legislationprovides for exemptions, for example where there is a genuine occupational requirement.

Ireland is preparing legislation to protect against age discrimination which would cover agelimits in job advertisements.56

53 Equal Opportunities Review, No 48, March/April 1993, "Age Discrimination - no change!"

54 Employment and Industrial Relations Law Journal, Vol 4 No 1 April 1994, "Age Discrimination in Australia"

55 Ibid

56 Source: Irish Embassy

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X Further Reading

1. People Management, 11 January 1996, "Only prejudices are old and tired" by RichardWorsley

2. Adjournment Debate on Age Discrimination introduced by Richard Ottaway, HC Deb,23 May 1995, cc 812 - 818

3. Employment Gazette, April 1995, "Older Workers: findings from the 1994 Labour ForceSurvey"

4. Employment Gazette, April 1995, "Utilising Older Workers"

5. Employment Gazette, April 1995, "Employment policies and practices towards olderworkers: an international overview"

6. European Industrial Relations Review, 247, August 1994, "Age discrimination inEurope"

7. Employment Department Research Series No 29, June 1994, "An International Overviewof Employment Policies and Practices towards Older Workers" by Joanne Moore,Barbara Tilson and Gill Whitting, ECOTEC Research and Consulting Ltd

8. Institute of Personnel Management, 1993, "Age and Employment. Policies, Attitudes andPractice"

9. Eurolink Age, 1993, "Age discrimination against older workers in the European

Community"

10. Equal Opportunities Review, No 48, March/April 1993, "Age discrimination - nochange!"

11. Report of the Carnegie Inquiry into the Third Age, "Life, work and livelihood in thethird age", 1993. Research Report on "Employment: the role of work in the third age"

12. Equal Opportunities Review, No 25, May/June 1989, "Age discrimination: over the hillat 45?"

13. Employment Select Committee, 1989, "The Employment Patterns of the Over-50s", HC41 - I,II,III, 1988/89

14. The Labour Market and Older Workers, Social Policy Studies No 17, OECD, 1995

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XI Statistical Appendix and Commentary

The following tables provide an overview of the labour market in Great Britain, particularlyin relation to older workers. Table 1 gives a breakdown of the population by economicactivity. Figures are shown for different age-bands and for men and women separately.Table 2 expresses the figures in table 1 as percentages of the total population in each age-band.

The economic activity rate is highest for men in the 25 to 34 age-band, but for women ishighest amongst those aged 45 to 49. A quarter of men aged 55 to 59 and a half of thoseaged 60 to 64 are no longer economically active.

Table 3 provides an age breakdown of people unemployed in Great Britain according to theInternational Labour Organisation (ILO) definition57. The unemployment rate for both menand women is highest among people aged 16 to 24. The unemployment rate for men islowest amongst those aged 45 to 49; however, it increases slightly for those in older age-bands. Table 4 shows a distribution of unemployment by duration for men and women byage. In general, the proportion of the unemployed who have been out of work for a long timetends to be higher for the older age-bands. Overall, 31 per cent of unemployed 55 to 59 yearolds had been unemployed for more than three years. This compares with just 17 per centof the unemployed aged 25 to 34.

The fifth table contains population estimates and projections by age-band and sex for theperiod 1971 to 2006. Over the next ten years the population aged 45 to 64 is projected toincrease by 1¾ million, whilst the population aged 25 to 34 is projected to fall by slightlymore than this amount. The population of those aged over sixty-five will only increasemodestly however.

Table 6 provides international comparisons of economic activity rates and unemployment ratesfor three different age-bands. Participation in the workforce by those aged 55 to 64 is highestin Denmark, Japan, Norway, Sweden, Switzerland, the United Kingdom and the United States.Unemployment rates for older workers (those aged 55 to 64) are higher than those for "prime-aged" workers (those aged 25 to 54) in Australia, Finland, Germany, Japan, Switzerland andthe United Kingdom.

57 The ILO measure of unemployment refers to those people without a job who were available to start work withintwo weeks and had looked for a job within the previous four weeks, or were waiting to start a job alreadyobtained. This definition is used for the UK's Labour Force Survey and differs from the monthly count ofunemployed claimants in a number of respects.

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PEDDS

Pages 24-29 are not electroncically stored but can be accessed from hard copy.


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Related Research Papers include:

Employment & Training

95/127 Unemployment by Constituency 13.12.95November 1995

95/122 Overseas Aid and the 1995 Budget 04.12.95

95/92 The Social Chapter 28.07.95

95/51 Employment and Training Schemes 21.04.95for the Unemployed

95/9 Disability Discrimination Bill 1994/95 19.01.95[Bill 32]

95/7 A Minimum Wage 17.01.95

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