CHAPTER 6: AGEING AND WORK III: AGE DISCRIMINATION |
6.1. Age discrimination in the labour market can
impose significant economic costs on individuals who may be prevented
from undertaking paid employment, on employers who may inadvertently
restrict the pool of workers from which they recruit, and on the
economy as a whole because of a misallocation of labour. In this
chapter we survey evidence on the existence and extent of age
discrimination in the United Kingdom labour market. We then turn
to consider the implications for employers and workers of the
implementation by 2006 of the EU directive on age discrimination.
The extent of age discrimination
6.2. Discrimination in the labour market on grounds
of age can occur both directly and indirectly (Q282). Direct age
discrimination occurs when, for example, an employer attaches
an upper or lower age limit to a particular job, or selects staff
for voluntary redundancy on grounds purely of age, rather than
work competence. Indirect age discrimination occurs when, for
example, career progression is contingent on the possession of
specific formal qualifications which have been in existence for
only a limited period, and which therefore are unlikely to be
held by persons over a particular age.
6.3. Age discrimination can be deliberate, but it
is often unconscious. For example, if an employer adopts general
employment criteria which have a differential impact on certain
people because of their age, but which are not relevant to job
performance, then age discrimination is likely to result (Q763).
6.4. Some jobs have formal age thresholds that are
sanctioned by law for reasons of health, safety or morality -
for example, minimum ages for employment in licensed premises,
or driving heavy goods vehicles. These do not fall within conventional
definitions of age discrimination.
6.5. Evidence about the existence or prevalence of
age discrimination in the labour market is far from straightforward.
As noted in the two previous chapters, there are many factors
influencing both the supply of and the demand for workers which
may affect the age structure of employment in a particular company
or economic sector, quite apart from any conscious or unconscious
discrimination on the part of the employer. The fact that persons
of a particular age may be under-represented in a specific employment
cannot, on its own, be taken as evidence of age discrimination
in that employment.
6.6. Nevertheless, we have received evidence that
large numbers of older people believe they have been discriminated
against in the labour market because of their age. The Chartered
Institute of Personnel and Development (CIPD) reported that its
surveys consistently provide evidence of employer discrimination
against older people. Ms Dianah Worman (Diversity Adviser, CIPD)
described age discrimination as "pervasive" in almost
all sectors of the labour market (Q754).
6.7. A CIPD survey of ageism conducted in 2001 found
that 10 per cent of respondents aged 45-54 believed they had been
rejected for a job they had applied for in the previous 12 months
because they were considered "too old", though few had
any hard evidence of discrimination. At the other end of the age
range, 7 per cent of respondents aged 16-24 had been told explicitly
that they were "too young" for a job they had applied
for, while a further 6 per cent suspected age was the reason they
were rejected. Thus age discrimination is perceived to exist among
both younger and older workers (though the determination of who
is viewed as "young" and who as "old" appears
to vary across industries and sectors).
A subsequent survey conducted for the CIPD in February 2003 found
that 40 per cent of persons interviewed believed they had been
discriminated against at work. Significantly, age appeared to
be the primary reason for discrimination, and was cited by one
third of all respondents who believed they had experienced discrimination,
compared to 14 per cent who cited gender, 5 per cent who cited
disability and 2 per cent who cited race.
6.8. Mr Ian Brinkley (Chief Economist, TUC) suggested
that explicit age discrimination, such as when age limits are
included in job advertisements, is now unusual. A larger problem
is that within companies many managers are unaware that the processes
and procedures they adopt may discriminate on the basis of age.
He thought that awareness of age discrimination significantly
lagged behind awareness of discrimination on grounds of race or
sex (Q335). Dr Philip Taylor agreed that although there is evidence
of employers actively responding to negative stereotypes of older
workers there is also much evidence that age discrimination in
the workplace is the result of unintended outcomes: employers
"often have not heard of age discrimination and they would
not know whether they were doing it or not" (Q1018).
6.9. Ms Susan Anderson (Director of Human Resources
Policy, CBI) agreed that ageism exists among the employer community
just as in society as a whole (Q611). She noted that some stereotypes
about the ageism of particular employers have historical roots
and reflect the fact that during the industrial restructuring
of the 1980s there was frequent agreement among employers, trade
unions and the Government to encourage older workers to leave
the labour market and make way for younger workers (Q614).
6.10. The TUC queried whether the targeting of older
workers for redundancy, which was common in the 1980s, has really
been reversed. The offer of early retirement can still be an important
way for firms to adjust the size of their workforce in both traditional
and newer industries such as telecommunications.
Mr Churchill (Age Concern) believed that a shift of employer attitudes
against older workers in the 1980s, which occurred for historically
specific reasons, has still not been reversed. In the 1980s and
1990s, employers who operated occupational pension schemes often
found it easier and cheaper to shed older rather than younger
workers, because the pension fund could bear much of the cost
of early retirement. The decline in investment values over the
past four years has reduced or eradicated the surpluses that had
accumulated in many pension funds, so this option is now less
appealing to employers than in the past, but it continues to provide
some scope for low-cost restructuring (Q282).
6.11. The Government have been active in raising
consciousness of age discrimination within the employer community.
In 1999, they issued a Code of Practice on Age Diversity. This
appears to have increased awareness of age discrimination among
the business community, and has helped to reduce the deliberate
practice of excluding people from employment on the basis of age
6.12. However, the Government's track record in countering
age discrimination within the public sector is, at best, mixed.
Retirement at age 60 is still the norm within the Civil Service,
although the Government have stated that the normal retirement
age for public employees should increase from 60 to 65 for new
entrants, with protection for those who are within 10 years of
retirement (Q1082). The Secretary of State for Work and Pensions
noted that "in many respects the public sector has not been
as flexible on these matters as the more enlightened people in
the private sector" (Q1082).
6.13. Age discrimination in employment is deplorable
in itself and harmful to the economy.
6.14. We conclude from the evidence available
that there is significant age discrimination in employment, and
that this discrimination occurs throughout the economy and in
both public and private sectors.
6.15. We further conclude that few employers operate
overtly ageist recruitment and retention policies (except in so
far as they use fixed retirement ages). Age discrimination is
frequently the unconscious outcome of an employer's more general
human resource management policy and procedure.
6.16. The apparent infrequency of direct age discrimination
through the implementation of overtly ageist recruitment and retention
policies is, we believe, a positive signal that most employers
have rejected the use of strict age thresholds as being inappropriate
to the workings of a modern flexible labour market. However, the
apparent extent of unconscious ageism in employment remains a
major challenge, since the eradication of unconscious discrimination
will require a fundamental cultural change on the part of employers
and workers. We discuss this issue further in paragraph 6.46 below.
6.17. Evidence from the voluntary sector indicates
that age discrimination affects participation in non-waged as
well as waged work. Research conducted in 1998 by the Institute
of Volunteering Research revealed that almost one in five voluntary
organisations applied upper age limits to their volunteers. Many
voluntary organisations cited the difficulty of obtaining insurance
cover for older volunteers as the reason for their use of an upper
age limit, though it is likely that in some organisations this
is used as an excuse for not taking on older volunteers.
6.18. We also investigated the appointment policies
and practices of a number of non-governmental public bodies to
determine whether participation in these organisations is affected
by any form of age discrimination. Although participants in many
such bodies receive allowances and out-of-pocket expenses, they
are often not formally remunerated. Even when remunerated, for
example as in the case of BBC governors, their service is conditioned
by a letter of appointment rather a contract of employment. Thus
participation in these bodies is not normally deemed to constitute
6.19. Scrutiny of the available information on the
ages of members of many public bodies such as the BBC, Sport England
and the General Medical Council suggests possible age discrimination
in appointments. Overwhelmingly, people appointed to such bodies
are aged between 45 and 65, and being appointed at an older age
or serving beyond the age of 70 seems to be virtually impossible.
6.20. We were concerned to find that there appears
to be no common practice of recording and reporting on the age
profile of participants in non-governmental public bodies. For
example, no information is available on the age structure of those
currently serving as special constables, whereas for the lay magistracy
the Department for Constitutional Affairs was able to state that
of the more than 28,000 lay magistrates, under 4 per cent are
aged under 40 and almost 35 per cent are aged 60-69.
6.21. We received evidence from Dame Rennie Fritchie,
the Commissioner for Public Appointments, about the procedures
followed by Departments in making appointments to public bodies.
She noted that appointments are intended to be as inclusive as
possible, and that age should not be a criterion for the assessment
of suitability for appointment or reappointment. She reported
that, in the case of magistrates, there is a statutory upper age
limit of 70, and she suggested that this limit should be reviewed
to determine whether it now has (or has ever had) a functional
We condemn such discrimination in the appointment of magistrates.
6.22. In response to the suggestion that there is
a widespread belief among actual and potential applicants that
in practice upper age limits appear to be applied to applicants
for public appointment even when no formal age limits exist, Dame
Rennie suggested that there may be procedural problems within
Government Departments, where sponsor teams may have inadequate
experience of managing the process of public appointments, and
may be unaware of what may constitute either direct or indirect
age discrimination (Q1170).
6.23. Age discrimination in public appointments should
be condemned and brought to a halt. We note in particular the
disproportionate impact on women, who tend, because of career
breaks resulting from caring responsibilities, to become available
for such appointments later in life.
6.24. We recommend that ageism in public appointments,
whether directed against those considered too old or too young,
should be brought to an end, and that an explicit commitment to
age diversity in public appointments should be made by the Government
and all sponsoring Departments. We believe that this can best
be achieved by ensuring that the process of appointment to any
public body complies with the terms of the forthcoming legislation
on age discrimination in employment, even in those cases in which
such appointments do not constitute formal employment.
6.25. We further recommend that the Commissioner
for Public Appointments be given statutory authority to seek out
cases of ageism in public appointment procedures, and should also
have powers which would lead to the diminution and eventual eradication
6.26. We were concerned to hear that the remit of
the Commissioner for Public Appointments does not extend to all
public bodies. For example, it does not include Privy Council
nominations to various bodies (Q1194). We were also concerned
to hear that appointments to hospital boards, which currently
fall within the Commissioner's remit, will no longer do so in
the case of foundation hospitals.
6.27. We recommend that in relation to ageism
the remit of the Commissioner for Public Appointments be extended
to include appointments to those publicly funded bodies which
currently or prospectively lie outside this remit.
The legislative environment
6.28. Discrimination in employment on grounds of
age is not at present illegal in the United Kingdom. However,
EU Employment Directive 2000/78 provides a common framework of
protection against discrimination at work on the grounds of sexual
orientation, religion or belief, disability and age. The age strand
of this Directive has to be implemented by December 2006.
6.29. The Government, through the Department of Trade
and Industry, has been conducting an extensive consultation exercise
since July 2003 specifically on the age clauses of this Directive,
with a view to having legislation in place (but not in force)
by December 2004 so that individuals and employers will have two
years to prepare for changes to employment practices. 
6.30. In the absence of draft legislation, there
appears to be considerable difference of opinion about the likely
impact of the Directive for employment policies and practices
in the United Kingdom. Dr Katherine Rake (Fawcett Society) was
of the view that the legislation would prohibit employers specifying
age in relation to any decision with respect to employment, recruitment
or retention. On the other hand Ms Anderson (CBI) believed that
differential treatment on grounds of age could be permissible,
if appropriately justified (Q620).
6.31. These differences of opinion arise from uncertainty
about how the Government will implement Article 6 of the Directive,
which allows Member States' implementing legislation to permit
practices that otherwise amount to direct age discrimination where
they are "objectively and reasonably justified by a legitimate
aim, including legitimate employment policy, labour market and
vocational training objectives, and if the means of achieving
that aim are appropriate and necessary."
6.32. The Government will not determine how to incorporate
the provisions of Article 6 into United Kingdom legislation until
the recent Age Matters consultation has been assessed.
However, the Secretary of State for Work and Pensions suggested
that he thought the criteria for "objective justification"
for discriminatory practices would be narrowly defined (Q1101).
We therefore believe that employers should prepare for the forthcoming
legislation on the assumption that direct age discrimination will
not normally be permitted.
6.33. Particular concern was raised over the issue
of "succession planning" in businesses which have a
number of people approaching retirement at the same time (Q586).
We note that the Government have identified this as one of a small
number of specific circumstances which might justify exceptional
treatment under the forthcoming legislation, as long as an "objective
justification" is provided.
6.34. We recommend that the Government should
be as explicit as possible in providing illustrations of the circumstances
in which exceptional treatment may be justified, in order to provide
the clearest possible guidance to both employers and workers.
6.35. An additional area of uncertainty relates to
the stipulation of a "normal retirement age". This is
another issue that is being considered in the current consultation
exercise, and it is one on which the Government note that there
is no clear agreement about the best way to implement legislation.
6.36. In evidence to us, the CBI noted that its colleagues
in other EU states believe that they will continue to be able
to set and implement a normal retirement age. The CBI counselled
the Government to ensure that the implementation of the EU Directive
in the United Kingdom is not out of line with that adopted in
other EU countries, since otherwise UK employers might be disproportionately
burdened with complex and costly legislation (Q621).
6.37. Both the CBI and the EEF noted that the use
of a normal retirement age can be advantageous to both worker
and employer. For the employer, it provides certainty with respect
to succession planning, and for the worker it provides an administratively
simple and socially acceptable mechanism for withdrawal from the
labour force. Mr Martin Temple (Director General, EEF) noted that
"it is often a form of celebration when somebody has reached
retirement and is moving on", and he expressed concern that
the abolition of normal retirement age might replace a dignified
and harmonious process of exit with conflict, acrimony and litigation
(Q578). Mr Warman (Vauxhall Motors) felt that the abolition of
a normal retirement age might particularly affect smaller companies,
because they are likely to have less scope for redeploying older
workers in alternative roles, and fewer resources in their personnel
divisions to deal with issues specific to ageing workers (Q617).
6.38. Concern was also raised by the CBI that, in
the absence of a normal retirement age, there might be frequent
resort to industrial tribunals to resolve disputes over decisions
about which workers should stay and which should go, particularly
if the cost to the worker of initiating a tribunal claim were
low (Q619). Professor Peter Warr noted that concern about potential
legal claims against subsequent alleged unfair dismissal might
discourage some employers from employing older people; thus it
is conceivable that the anti-discrimination legislation could
reduce rather than enhance employment opportunities for some older
6.39. On the other hand, the point was forcefully
made by the Equal Opportunities Commission and the Fawcett Society
that for the new legislation on age discrimination to be effective,
it needs to be backed by a powerful enforcing body (QQ374; 496).
Enforcement is unlikely to be effective in the absence of clear
6.40. We recognise these concerns about the potential
costs to all parties of extensive resort to litigation to resolve
disputes arising from the legislation on age discrimination. We
were reassured to hear the Secretary of State for Work and Pensions
express the desire of the Government that this legislation should
be carried forward "with large measures of common sense and
a minimum amount of intrusive bureaucracy" (Q1104).
6.41. In order to minimise the cost to all parties
of disputes relating to age discrimination, we recommend that
the Government should incorporate in the forthcoming legislation
on age discrimination the option of rapid and low-cost arbitration
6.42. We also recognise the legitimacy of arguments
for retention of a normal retirement age, but on balance we believe
that any such retirement age may impose restrictions on the efficient
functioning of the labour market in our ageing society. We believe
it is for firms and their employees to devise their own retirement
systems, and we further believe that these systems should be based
on performance criteria rather than chronological age. We have
taken note of the fact that in both the United States and Australia
the introduction of legislation on age discrimination has proscribed
the use by employers of a normal retirement age, yet this has
had only a marginal impact on the employment patterns and retirement
behaviour of older workers (Q995).
6.43. We therefore recommend that the Government
should not permit the continued use of a normal retirement age
by employers, whether at age 65 or 70 or 75, unless the employer
can provide a reasoned and objective justification for the use
of age rather than performance criteria in the determination of
employability. We further recommend that the Government set an
example of good practice by explicitly removing upper age limits
in all public-sector employment in advance of the implementation
of the forthcoming legislation on age discrimination.
6.44. We are concerned, however, that the implications
of the legislation on age discrimination have yet to be fully
appreciated by most employers and most workers in the United Kingdom.
The proscription of the use by employers of age as a criterion
for recruitment, promotion, training, redundancy or retirement
will have a profound impact on employment practices. The Chartered
Institute of Personnel and Development noted that this impact
would be greatest on those "command-type organisations"
in which mandatory retirement is a convenient device for easing
the process of promotion and facilitating natural wastage.
We believe that many private-sector organisations, and much of
the public sector, is characterised by this style of personnel
6.45. When age cannot be used directly or indirectly
as a criterion for determining employment decisions, it will be
necessary for employers to adopt clear performance criteria to
determine which individuals should be recruited, promoted, demoted
or made redundant. This will require the further development of
worker appraisal throughout a person's working career, and other
systems of worker evaluation. Baroness Greengross noted that difficulties
will be encountered in developing more thorough-going appraisal
systems, but that this was an inevitable stage of moving towards
a more age-diverse labour market (Q112).
6.46. We conclude that a move from age-based to
competency-based criteria for recruitment, promotion and retirement
will require a profound cultural shift on the part of both workers
and employers. Long-established conventions about seniority-based
promotion and pay will have to be challenged, employers will have
to operate transparent and justifiable personnel policies, and
employees will have to accept regular monitoring and assessment
of their job performance.
6.47. We are concerned that the time scale for the
implementation of the legislation on age discrimination will allow
employers and workers at most two years to revise their procedures
and expectations to conform with the new legislation. This is
a very short period, given the scale of the cultural shift required,
and it may impose a particularly onerous burden on small businesses.
6.48. We therefore recommend that, as soon as
the draft legislation on age discrimination is in place, the Government,
in conjunction with both employer and worker organisations, should
embark on a major campaign to raise awareness of the impending
legislation, and of its likely effects.
6.49. We recommend that, just as legislation is
now scrutinised for possible infringements of, for example, human
rights, it should become routine for such scrutiny to cover the
issue of age diversity, and for Ministers to certify that policy
and legislation do not contain an ageist element.
70 Chartered Institute of Personnel and Development,
Age discrimination at work, p 11 Back
CIPD, Age, pensions and retirement: Attitudes and expectations,
p 11 Back
TUC, volume II, p 114 Back
Institute for Volunteering Research, volume II, p 448 Back
Department for Constitutional Affairs, volume II, p 441; Home
Office, volume II, p 447 Back
We note, however, that the Commissioner's narrow remit does not
cover the appointment of magistrates. Back
Secretary of State for Work and Pensions, volume II, p 404 Back
Secretary of State for Work and Pensions, volume II, p 404 Back
DTI, Equality and Diversity: Age Matters (2003) p 16 Back
Warr , volume II, p 486 Back
CIPD, volume II, p 269 Back