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![Page 1: Sally Brett TUC Equality Policy Officer Diversity or discrimination? The question of age Institute of Employment Rights, Update on Equality Law, Liverpool,](https://reader035.fdocuments.us/reader035/viewer/2022062421/56649dc75503460f94abcb0b/html5/thumbnails/1.jpg)
Sally BrettTUC Equality Policy Officer
Diversity or discrimination? The question of age
Institute of Employment Rights, Update on Equality Law, Liverpool, 22nd October 2008
Sponsored by
![Page 2: Sally Brett TUC Equality Policy Officer Diversity or discrimination? The question of age Institute of Employment Rights, Update on Equality Law, Liverpool,](https://reader035.fdocuments.us/reader035/viewer/2022062421/56649dc75503460f94abcb0b/html5/thumbnails/2.jpg)
www.tuc.org.uk
Age Regulations are two years old• Prohibit direct and indirect discrimination,
victimisation and harassment • Provisions allowing positive action• General objective justification defence for
direct and indirect discrimination• Specific exemptions for certain employment
policies and practices e.g. NMW, redundancy, service-related benefits, Default Retirement Age of 65
• Right to request to stay on through complicated retirement procedure
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www.tuc.org.uk
TUC view of Age Regulations
• Supported legislation to tackle ageism at work
• Challenged justifiability of some specific exemptions e.g. NMW rates, service-related benefits
• Disappointed forced retirements able to continue
• Concerns over retirement procedure and lack of reasons from employer
• Need for statutory Code of Practice on age
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www.tuc.org.uk
Number of age claims on the rise
• DTI anticipated 8,000 cases a year• 972 cases in first six months (ETS
statistics - Oct 06 to Mar 07)• But Acas reported 2,652 age claims in
2007/8, up from 739 in previous year• Possibility of large multiple claims
concerning collective structures
![Page 5: Sally Brett TUC Equality Policy Officer Diversity or discrimination? The question of age Institute of Employment Rights, Update on Equality Law, Liverpool,](https://reader035.fdocuments.us/reader035/viewer/2022062421/56649dc75503460f94abcb0b/html5/thumbnails/5.jpg)
www.tuc.org.uk
Benefits
• Swann v GHL Insurance – flexible benefits scheme with higher premium for PMI for older workers was justified
• Bloxham v Freshfields – legitimate aim to ensure sustainable pension plan that is fair to all ages; extensive consultation and communication but no less discriminatory alternatives identified
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www.tuc.org.uk
Redundancy policies
• MacCulloch v ICI – age and service-based redundancy scheme challenged by 36-year old with comparison to 55-year old
• Loxley v BAE Systems – scheme denying contractual redundancy payments to over 60s challenged by 61-year old
• EAT ruled both schemes may have legitimate aims (e.g. rewarding loyalty, cushioning older workers, preventing workers about to retire from getting windfall) but tribunals had not properly analysed proportionality
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www.tuc.org.uk
Termination
• Martin v SS Photay - 70-year old cleaner dismissed on grounds of age
• Court v Dennis Publishing – 55-year old selected for redundancy by company with ageist culture
• Wilkinson v Springwell Engineering – teenager dismissed after being told she was “too young for the job”
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www.tuc.org.uk
Retirement dismissals• Seldon v Clarkson, Wright and Jakes –
compulsory retirement of partner was justified because need to provide career advancement opportunities (appeal pending)
• Hampton v Lord Chancellor – compulsory retirement age of 65 for Court Recorders was not justified (appeal pending)
• Holmes v Active Sensors – dismissal was retirement as request to stay on did not state ‘under para 5(3)’
• Johns v Solent – Court of Appeal agrees unfair dismissal claims should be stayed
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www.tuc.org.uk
Heyday challenge to default retirement age• Age Concern sought judicial review of Age
Regulations in High Court• High Court referred very narrow questions to
ECJ • Advocate-General’s opinion:
– Directive does apply to retirement (ECJ already ruled this in Palacios case)
– Rules like the DRA can in principle be justified under Directive
• ECJ ruling and then High Court will decide if DRA is justified after (probably 2009)
• Govt. commitment to review DRA in 2011
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www.tuc.org.uk
Impact on employer practice• Survey evidence suggests employers’ focus
is on tackling formal signs of ageism• Few proactive measures to recruit or retain
an age diverse workforce • Some employers introduced fixed retirement
ages and formal policies in response to Regs• Recent CBI survey claims a third of
employees are requesting to stay on and majority of requests granted
• Employment over state pension age has increased by 9.2% (July 2007 to July 2008)
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www.tuc.org.uk
Flexible retirement and extended working lives
• Finance Act 2004 made flexible retirement possible
• DWP consultation suggests obstacles and uncertainty created by Age Regulations
• Employers unwilling to objectively justify flexible retirement practices
• Some employers not motivated to take voluntary positive action
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www.tuc.org.uk
Proposals in the Equality Bill• Extension of protection from age
discrimination • Justified age-differentiated services to
continue (e.g. free bus passes, flu jabs for over 60s, targeted holidays)
• Proposals for a new Framework Directive• Phased implementation with initiatives to
tackle ageism in health and social care and working group on financial services
• Public sector equality duty to include age
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www.tuc.org.uk
Further information
• TUC/CIPD ‘Managing Age: A guide to good employment practice’ (www.tuc.org.uk)
• DWP consultation, ‘Flexible retirement and pension provision’ (www.dwp.gov.uk)
• McNair, Flynn & Dutton, ‘Employer responses to an ageing workforce: a qualitative study’ (DWP, 2007)
• EOR, ‘Age equality policies: an EOR survey’ (November 2007)
• ‘Framework for a Fairer Future’ White Paper (www.equalities.gov.uk)