Sally Brett TUC Equality Policy Officer Diversity or discrimination? The question of age Institute of Employment Rights, Update on Equality Law, Liverpool, 22 nd October 2008 Sponsored by

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

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

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

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

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

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”

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

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

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)

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

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

Further information TUC/CIPD ‘Managing Age: A guide to good employment practice’ ( DWP consultation, ‘Flexible retirement and pension provision’ ( 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 (