Memorandum from the Department for Education
1. The Government conducted a year long
consultation from 1997 on the issues involved with age discrimination
and how best to tackle it. The consultation involved employers,
individuals, trades unions, and expert organisations. it recommended
a non-statutory Code of Practice on Age Diversity in Employment
as the best way forward at that time because of the complexity
of some of the issues to be addressed. The Code was developed
with advice from the CBI, TUC, Employers Forum on Age, the Chartered
Institute of Personnel and Development, the Institute of Management,
Age Concern and the Recruitment and Employment Confederation.
The extensive consultation of the draft Code supported the standards
it advocated but highlighted the need for accompanying good practice
case studies. When the Code was published in June 1999 it was
supported by guidance and case studies for employers on how to
implement and reap the benefits of non-ageist employment practices
in recruitment, selection, training and development, promotion,
redundancy and retirement.
2. In responding to a Parliamentary Question
in December 1998, the Prime Minister made it clear that the impact
of the Code would be fully evaluated and that would inform future
plans for legislation. A programme of evaluation and related research
was set in hand to focus on key aspects of age discrimination.
The full findings from that work will be published by the summer
2001. Interim findings from the evaluation of the impact of the
Code were made publicly available in June last year. We are just
now starting to pull together the findings from the three surveys
and qualitative research. We have included in this Memorandum
what information we currently have available, but the full findings
will only become available over the next few months.
3. The Government found this experience
invaluable in informing the negotiations for the European Employment
Directive on Equal Treatment. It will also be of great assistance
in helping to shape clear and workable legislation implementing
Age Discrimination: Analysing the Problem
4. Over the last two decades there has been
a steady decline in the employment rate of older workers throughout
Europe. Much of this decline can be attributed to industrial restructuring
and social policies that encouraged older people to exit the labour
market early through, for example, redundancy and early retirement.
5. The pace of decline has varied, with
Southern European countries experiencing a more rapid loss of
older workers in employment. Employment rates also vary between
men and womenmen have been disproportionately affected.
UK evidence drawn from the Labour Force Survey shows that employment
rates for men aged 55 to 59 declined from 93 per cent in 1971
to 74 per cent in 1999. By contrast participation in the labour
force for women in the same age group increased marginally from
51 per cent in 1977 to 55 per cent in 1999. This increase has
not been as great as experienced by women of younger age groups.
6. In the last 10 years, European countries
have begun to address this issue in a number of ways. Removing
barriers to work and encouraging participation are two key examples.
Pro-active measures include closing off of early exit pathways
in pension provision and benefit systems, promoting a business
case for retaining and employing older workers and employment
programmes targeted at older workers.
7. Age discrimination has had a particular
impact on older workers, but in employment age discrimination
against younger people is also evident. "Age Discrimination
in the Workplace" (Continental Research Spring 2000) reported
that when young people were asked about age discrimination at
work, or when looking for work, 80 per cent thought there is a
lost of discrimination, and 30 per cent of the 18 to 24 age group
said they had experienced it, rising to 45 per cent of 18 to 30
year olds. However the EFA report "Releasing Potential"
(April 2000) surveyed 1,000 young people aged 18 to 30 and found
that young people do not experience (perceive) discrimination
on the basis of age alone.
8. The DfEE has commissioned further research
to examine the attitudes and experiences of young people of age
discrimination in employment. The findings will be available and
published by the summer 2001.
9. Due to the sensitive nature of age discrimination
research, it is difficult to quantify the extent to which older
workers are treated less favourably compared to younger workers.
For example, quantitative surveys have provided inconsistent figures
on the proportion of older people being discriminated against
in employment. In addition, instances of age discrimination may
be under-reported in some survey research, possibly because employers
are unlikely to report instances of unfair treatment or they may
unwittingly discriminate against people based on their age. Furthermore,
discrimination is not always overt in nature. Whereas instances
of direct discrimination (eg including age bands in advertisements)
are quite clearly tangible examples which can be readily quantified,
discrimination may also operate indirectly in ways more difficult
to quantify and measure statistically. Age discrimination differs
from other forms of discrimination as a comparative group cannot
be readily identified.
Quantifying the extent of discrimination against
10. There is a wealth of European and UK
research, using inconsistent methodologies, which has tried to
measure the extent of age discrimination. The body of evidence
suggests that there is age discrimination in employment but it
is difficult to put a figure on its extent.
11. Quantitative information on the extent
of discrimination is based on two surveys which have sought to
measure the prevalence of unfair treatment through the accounts
of older people themselves. The Family and Working Lives Survey
found that discrimination was more likely to be reported in the
area of recruitment, where 5 per cent of people aged 45 to 69
believed they had been discriminated against when applying for
jobs because they were "too old". the perceived incidence
of discrimination increased with age: 7 per cent of men and women
aged 50 to 54 believed that they had been discriminated against
in making job applications.
12. A more recent source of information,
the two-year evaluation of the Code of Practice on Age Diversity,
explored the perceived incidence of age discrimination among older
people (aged 50-69) across the six aspects of the employment cycle
set out in the Code. A survey conducted six months after the Code
was issued found that a fifth of older people believed they had
been discriminated against in an actual or possible job because
of their age. Discrimination was more likely to be reported in
the area of recruitment where 12 per cent of older people felt
that their age was the key-mitigating factor against them when
applying for jobs, compared to 4 per cent who felt that they had
been discriminated against in relation to training and development
opportunities and 6 per cent in relation to promotion opportunities.
This measure should be treated with some caution; not all those
reporting discrimination had been told that they were too old,
for some the awareness was instinctive or through observation
(eg seeing a less well qualified but younger candidate offered
13. Throughout the 1990s, research across
all European countries has suggested that age discrimination in
the labour market is widespread, particularly in the areas of
recruitment and training.
14. Researchers have attempted to define
discrimination through qualitative and quantitative evidence.
DfEE research published in November 2000 indicates that unfair
treatment can range from ageist attitudes and assumptions regarding
an individual's experience, abilities, skills or knowledge to
ageist principles outlined in human resource management policies,
company ethos and marketing techniques.
15. Research on employer personnel practice
provides an insight into the extent and manner of discrimination
by employers. An obvious example is in the recruitment process.
Research indicates that this is a less common form of discrimination
than previously. In 1991 an employer survey found that nearly
half of employers felt that age was an important criteria in the
recruitment of staff.
By contrast, the 2000 Wave 2 survey of employers, carried out
for the Evaluation of the Code, found that only 13 per cent of
employers mentioned a preferred age range, and 6 per cent of employers
mention age limits when advertising a vacant post. More recently,
a survey of adults aged 16 plus, carried out by the Chartered
Institute of Personnel and Development, found that one in eight
people had been discouraged from applying for a job in the past
year because of age restrictions in job adverts or inferences
about a preferred age.
16. Age discrimination can also take the
form of stereotypical views about the strengths and weaknesses
of people based on their chronological age. A DfEE survey of employers
found that older workers were more likely to be perceived as having
positive attributes associated with maturity, loyalty, experience
and reliability, and negative assumptions relating to inflexibility,
ill-health, lower physical strength and poor IT literacy.
However, there is little medical or performance evidence to back
17. Research indicates that older people
have been treated less favourably than their younger counterparts
in the area of redundancy and early retirement.
Throughout the recession years of the 1970s and 1980s, employers
seeking to reduce their overheads targeted such measures at older
workers to achieve staffing reductions. Older people were actively
encouraged to take early retirement to make way for the young
in the labour market.
18. Employers across Europe are waking up
to the business benefits of employing and retaining older workers.
However, this is no reason to be complacent. It is important to
consider the role and expectations of older workers themselves
in early exit from the labour market. Early exit strategies still
exist in some industries and early retirement is still the expectation
of some older people. In 1999, almost one-third (31 per cent)
of employers surveyed as part of the evaluation of the Code offered
early retirement to their employees; and 1 in 4 employed adults
aged 50 to 69 said that they "expect" to retire before
60, most commonly at 55.
19. However, while half those in employment
thought it likely that they would take paid employment after redundancy
or early retirement, research shows that once detached from the
labour market, older people find it much more difficult to secure
a job. Labour Force Survey data for Spring 2000, shows that 42
per cent of people aged 50 to state pension age have been unemployed
for 1 year or more compared to 32 per cent of those aged 25 to
49 and 15 per cent of those aged 16 to 24 years.
20. With regard to discrimination against
older workers and training opportunities, analysis of the Labour
Force Survey suggests that older people are much less likely to
receive training than younger peopledata for spring 2000
shows that only 10 per cent of adults aged 50 to 64 had received
employer based training in the last 13 weeks compared to 23 per
cent of those aged 20 to 24 and 17 per cent of those aged 25 to
21. According to the Wave 2 survey of employers
as part of the evaluation of the Code, four out of five companies
offered training and development opportunities to all staff irrespective
of their age. However, one in five companies rely on self-selection
by individuals interested in training, which may inadvertently
disadvantage older workers who are thought to be less confident
in particular areas of training associated with IT. Research suggests
that employers perceive older people as taking longer to learn,
and that they are less likely to experience a pay-off from their
investment in training because older workers are closer to retirement
than their younger counterparts.
22. There is potential for employers to
indirectly discriminate against older workers on qualification
grounds. Labour Force Survey data for Spring 2000 shows that 27
per cent of those aged 50 to State pension age have no qualifications,
compared to 13 per cent of those aged 25 to 49. The evaluation
of the Code indicates that two-thirds of employers include specific
qualifications required in job adverts. This may inadvertently
restrict applicants to a desired age range because older people
are less likely to possess formal qualifications. This reflects
lower levels of formal education provision in their youth.
Such indirect discrimination may arise if employers place unnecessary
emphasis on educational qualifications to determine whether or
not a person is capable of doing a job. Because older people are
less likely to possess such qualifications, they may be deemed
unsuitable, irrespective of whether or not they possess relevant
experience or transferable skills acquired through their working
23. The National Adult Learning Survey 1997
found that 38 per cent of people aged 56 to state pension age
have poor basic skills compared with 19 per cent of those aged
16 to 25. Given the shift in the labour market from traditional
manual work to services and skilled work, older people with poor
basic skills will also face difficulties in competing for jobs.
The Benefits of Age Diversity in the Workplace
24. Age discrimination is both unfair and
wasteful, and makes no economic sense. Overall the economic cost
is high. The Government report "Winning the Generation Game"
(April 2000) found that the drop in work rates amongst people
aged over 50 since 1979, costs the economy about £16 billion
a year in lost GDP and costs the public purse £3-5 billion
in extra benefits and lost taxes. Other estimates have put the
figure higherthe Employers Forum on Age estimated the cost
in lost GDP at £26 billion a year. The waste in human terms
is equally high. People, younger or older who are unable to fulfil
their potential because of age prejudice, can suffer in terms
of demotivation, financial insecurity, and declining health. Increasingly
employers are however realising the loss to the organisation arising
from ageist employment practices and the considerable benefits
of an age diverse workforce for both the organisation and its
25. Employers need to make sure they recruit
or promote the best person for the job. Employers who have dispensed
with unnecessary age criteria in their employment practices and
replaced them with objective, job related ones, have a wider choice
of applicants from which to recruit to get the best person. They
are also more likely to find the right person for the right job,
with consequent reductions in staff turnover and absenteeism,
leading to reduced business costs.
26. An age diverse workforce opens opportunities
for building a more flexible, multi-skilled workforce, which is
more able to contribute to business success. A number of employers
have already recognised and benefited from the benefits of an
age diverse workforce. Some of these were featured in the guidance
accompanying the Code of Practice on Age Diversity. Two of the
case studies, Wombwell Foundry and HCR plc, both classed as small
or medium sized enterprises, identified business benefits that
were typical of many of the organisations featured. Absenteeism
decreased, business costs were reduced and productivity increased.
Wombwell reported significant increase in output; HCR reported
cost reductions of £400,000. There were also reductions in
staff turnover. HCR reported a reduction in staff turnover of
20.5 per cent.
27. For some organisations, benefits have
stemmed from a simple change in recruitment practices. Famously,
B&Q shifted its store recruitment focus to include older people
to reflect its customer base and was able to report improved sales
and customer service as well as increased productivity.
28. Employers need to be aware of the changing
age profile of the population. By 2005 over 36 per cent of the
workforce will be aged over 45 and by 2010 almost 40 per cent
will be in that age group. People aged 16 to 24 will make up only
17 per cent of the workforce. If employers continue to compete
with each other for the reducing numbers of younger people, whilst
ignoring or failing to invest in the training of older age groups
in the labour market and workforce that will increasingly drive
up recruitment and wage costs.
29. For the individual, age diversity opens
up the opportunity to make use of acquired skills, to contribute
fully to society, and to experience the accompanying increase
in motivation and self worth which stem from that. It encourages
the development of a labour market in which people are able to
compete fairly for employment opportunities regardless of their
30. We have a culture when an arbitrary
age is generally used to determine the point of retirement. This
means that employees with the skills and experience to continue
making a valuable input to the organisation are arbitrarily retired.
Indeed some organisations, including a fire service, have found
real benefits in no longer using age as an arbitrary proxy for
mental and physical ability to do the job effectively. The Code
and accompanying case studies set out the benefits for employers
and individuals of a more flexible approach to retirement based
on individual choice and employer need.
31. Research has shown that there are human
an social costs for individuals who are out of work involuntarily.
More than half of those out of work have characteristics associated
with social exclusion. They are more likely to experience low
self-esteem and poverty, which can lead to disillusionment, depression
and ill health, with considerable future costs to society. Unemployment
has been shown to increase the risk of earlier death by as much
as a third for men and women of all ages, and they are more likely
than those in work to die from cancer, heart disease, accidents
and suicide. By contrast, those in work visit their GP around
50 per cent less than people unemployed, and report being more
satisfied with their lives overall. 30 per cent of people, 50
to state pension age, are economically inactive (Labour Force
Survey Spring 2000) with almost one million of those receiving
Promoting Age Diversity
32. To support the Code, the Government
launched an advertising and publicity campaign from February 1999
aimed primarily at employers and those who can influence employers.
The campaign began with national poster, press and commercial
radio advertising, followed by regional press advertisements.
Subsequently, the campaign has developed several different strands.
33. One of the strands targets recruitment
and human resources media as a means of reaching those who recruit,
retain and promote. This has included the placing of articles
in key publications such as The Interviewer, People Management
and Personnel Today, and the launch of a best practice
award aimed at recruitment consultancies. During August, an information
pack was mailed to 11,000 consultancies, giving information about
the need to tackle age discrimination and trailing the competition.
The award is sponsored by The Interviewer, which has been
providing extensive editorial coverage throughout the Summer and
into the Autumn. In addition, DfEE has sponsored a Personnel Today
award aimed at other organisations.
34. A second strand of the campaign includes
the targeting of specific industry sectors, such as engineering,
IT, retail and the public sector. This involves the placing of
articles in trade association journals, bespoke mailings to trade
association members and articles in other trade publications.
35. The third strand relates to the general
business and regional press as a means of reaching general managers
and businesses. This includes coverage in titles such as Management
Today and initiatives by some employer organisations to promote
the benefits of age diversity. The CBI, for example, has mailed
copies of the Code of Practice to 1,000 of its member companies
urging the case for adopting the standards it sets out. In addition,
25 regional newspapers across the country sponsored regional age
diversity awards. A number of employers have also agreed to champion
age diversity by providing case studies and by giving time to
the campaign. The campaign will continue throughout the year.
36. Evaluation evidence indicates that the
code has been effective in raising the profile of age diversity
issues among employers. It has helped bring about a culture change
in employers' attitudes towards age. The research shows that awareness
has been increasing steadily since the code was introduced 19
months ago. Just six months after the code was issued, 29 per
cent of employers said that they were aware of it. Levels of awareness
are higher among large organisations where almost two-thirds have
heard about it. Preliminary analysis of the Wave 3 survey shows
that 16 months after the code was issued, 37 per cent of employers
were aware of it.
37. The DfEE is currently working closely
with Age Concern Training and the Employers Forum on Age to take
the Code and an understanding of the benefits of an aged diverse
workforce, to small and medium sized enterprises (SMEs). The project
will develop a model for successfully engaging SMEs in the issue,
which can then be used widely. The DfEE is also planning to further
build on the promotional campaign by developing age diversity
strategies with key occupational sectors.
The impact of the Code of Practice on Age Diversity
38. To measure the impact of the Code, the
DfEE commissioned a programme of research from NOP. The research
looks at two different audiences: a cross-section of employers
randomly selected from all enterprises in Great Britain and a
sample of British residents aged between 50 to 69 years. The research
was carried out over 3 waves. A baseline survey at wave 1 took
place six months before the Code was issued, and has been used
as a benchmark against which to measure change. The second wave
was undertaken 6 months later, in June 1999. The third and final
wave took place 16 months after the Code was originally issued
and a final report is being prepared. In addition, a series of
30 case studies were conducted. These included analysis of administrative
data held by companies and 75 in-depth interviews with front-line
managers as well as younger and older employees.
39. The surveys have found employers were
generally positive about the idea of age diversity; old and young
alike were found to be valued in different ways. Many companies
valued both age groups equally. Generally older workers were particularly
valued for their loyalty, commitment and maturity and younger
workers for their enthusiasm, flexibility and drive. In terms
of productivity, more than two-third of employers did not distinguish
any different in characteristics between older and younger employees.
Only 20 per cent of employers could think of any disadvantages
of an age diverse workforce, with many recognising the benefitsthe
availability of older people to train and advise younger staff,
a diverse range of attitudes and experiences that could enrich
the company and a workforce that reflects the age profile of society.
40. The research found that reference to
age in personnel policies was uncommon: few companies acknowledged
that age discrimination occurs in any of their policies relating
to recruitment, promotion, training and development, redundancy
and retirement. However, this is no reason to be complacent. A
significant minority did include age as a criterion in some aspects
of the employment cycle outlined in the code.
41. However, the wave 2 survey indicates
some promising signs of change with more companies orientating
their policies towards age diversity:
The proportion of companies taking
age into consideration when selecting the best candidate for a
job had almost halved just six months after the code was issued:
27 per cent of companies reported using this criteria in Wave
1 compared to 16 per cent in Wave 2.
There has been a slight decrease
in the proportion of companies taking age into consideration when
selecting candidates for promotion: a decrease from 18 per cent;
in Wave 1 to 15 per cent in Wave 2.
The proportion of companies offering
training and development opportunities to all staff has increased
from 72 per cent at Wave 1 to 81 per cent at Wave 2.
Consultation with employees about
their training needs has also improved: managers in 49 per cent
of companies surveyed at Wave 1 had sole responsibility for identifying
candidates for training compared to 38 per cent at Wave 2.
42. Companies report a general reluctance
to make changes to their existing employment policies and practices.
The main reason given for introducing no change as a result of
the Code is the belief that company policy or practice is already
appropriate or that it currently meets the criteria of government
policy. This is something that the government expects future legislation
Help for Over 50s in the Labour Market
43. In the EU, the UK has the fourth highest
employment rate for 55 to 64 year olds at 49.4 per cent, this
is marginally behind Portugal (50.8 per cent), but somewhat lower
than Denmark (54.2 per cent) and Sweden (64 per cent).
44. Each summer the Government publishes
an analysis of the labour market position of older people (50
to state pension age). Over the two year period to April 2000
the employment level of older people rose by 6 per cent. While
levels of unemployed older people had fallen the proportion who
were economically inactive remained largely static at 30 per cent.
45. To provide additional help for older
jobseekers, that specifically addresses the problems of those
worst off, the Government introduced New Deal 50 plus. Launched
nationally in April 2000, it is a major new programme offering
personal advice, help with jobsearch, a cash employment credit
(£60 per week for full-time work and £40 per week for
part-time work), and an in work training grant of up to £750.
Each year it is expected to help 45,000 over 50s, who have been
on benefits for over 6 months, or their dependant partners, back
into employment. In its first eight months it has already helped
25,000 people aged 50 or more, move from benefits into work with
the employment credit. For 2001-2, we plan to help about 45,000
older people into work. We are also developing 3rd Age Apprenticeships
within New Deal 50plus to help older jobseekers into work in specific
skills shortage sectors, drawing on the programme's training grant,
to help the employer provide skills training.
46. Our major training programmes for adults
out of work, have no upper age limit. UK On-line Computer Skills
for employability is attracting considerable demand from older
jobseekers, with over half of the participants over 50. We are
also developing additional help with basic skills for all jobseekers
with such a need.
47. From April 2001 the Government will
nationally launch New Deal for Disabled People to offer additional
job broking and help for those people on Incapacity Benefits who
want work in some capacity. Just over half the people who are
in receipt of Incapacity Benefits are aged 50 and over.
48. The Government has introduced a range
of employment and training help for jobseekers of all ages, each
designed to specifically meet the needs of particular jobseekers.
New Deal for Young People focuses on help appropriate for people
aged 18 to 24 who are making the transition from education or
casual work into sustained employment, at the beginning of their
careers. For adults, New Deal 25+ and Work Based Learning and
a range of other employment services are available. Many people
aged 50 or over will be eligible for a range of help. Employment
personal advisers help adults to select the provision most appropriate
to help them into work.
49. The Prime Minister commissioned the
report "Winning the Generation Game" which was published
last year. It identifies action needed to overcome the barriers
faced by older people in the labour market. An Inter-Ministerial
Group is ensuring progress in areas which include pensions good
practice, encouraging more flexible approaches to retirement,
and more opportunities for volunteering and learning.
The European Employment Directive on Equal Treatment:
Implementing Age Legislation
The implication of the Directive
50. The Government supports the terms of
the Directive which will require the introduction of new legislation
to put into effect "the principle of equal treatment",
by 2 December 2006. This requires law prohibiting direct or indirect
discrimination on the grounds of age in relation to:
conditions for access to employment,
self-employment or occupation, including selection criteria, recruitment
conditions and promotion;
access to all types and all levels
of vocational guidance, vocational training (including practical
work experience), advanced vocational training (which includes
many further and higher education courses at colleges and universities)
employment and working conditions,
including dismissals and pay;
membership of, and involvement in,
an organisation of workers (including Trade Unions) or professional
organisationand the benefits provided for by any such organisation.
51. The Directive covers both the public
and private sectors.
52. However, the Directive does not apply
to payments under state social security or social protection schemes;
and, when transposing the age provisions of the Directive, Member
States may choose to exclude:
service in the armed forces; and
membership of, or benefits under,
occupational pension schemes.
53. If our implementing legislation so provides,
it would not be discrimination where the less favourable treatment
is shown to be 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. The Directive provides
the following list of (non-exhaustive) examples of situations
where differences of treatment on the grounds of age are capable
of being justified:
the setting of special conditions
on access to employment and vocational training, employment and
occupation, including dismissal and remuneration conditions, for
young people, older workers and persons with caring responsibilities
in order to promote their vocational integration or ensure their
the fixing of minimum conditions
of age, professional experience or seniority in service for access
to employment or to certain advantages linked to employment;
the fixing of a maximum age for recruitment
which is based on the training requirements of the post in question
or the need for a reasonable period of employment before retirement.
54. The Directive also allows for differences
of treatment based on age to be justified where a person's age
is a genuine and determining occupational requirement. For example,
it might be a genuine requirement for these purposes for the presenter
of a TV youth programme to be young.
55. Implementing legislation will need to
make provision for individuals who consider that they have been
discriminated against contrary to the Directive to seek redress
in the Courts or tribunalsand to be awarded appropriate
compensation where the allegations are upheld.
56. All laws, regulations and administrative
provisions contrary to the principle of equal treatment will have
to be repealed; and implementing legislation will need to ensure
that provisions contrary to that principle in things such as contracts
of employment, collective agreements, and the rules governing
membership of employers, workers or professional organisations,
can be annulled by Courts or tribunals, if not amended.
57. We intend to take full advantage of
the long implementation period to consult with employers, individuals
and expert groups to develop clear and workable legislation. We
want to take employers with us. It is also our intention to promote
vigorously the business benefits of age diversity.
Six Year Implementation Period
58. The Directive provides for a six year
implementation period for both age (and disability).
The Government supported the six year implementation
period for age to ensure we would have the time to consult closely
and extensively with employers, individuals and expert groups,
to prepare clear, workable and beneficial age legislation. We
listened to our social partners during the consultation on the
Directive. Employer groups were concerned about confusion and
a rush to litigation, and age representative groups expressed
concerns about ineffective legislation. We agree the importance
of producing clear guidance for employers to enable them to prepare
for legislation, and the need to develop workable legislation
to effectively outlaw age discrimination based on ill-founded
prejudice, and the inappropriate use of age criteria. We will
take the time needed to achieve this. As we look to the extensive
consultations ahead, it would be wrong to predict at this stage
the necessary timescale. That does not mean we will do nothing
in the meantime.
59. We are already tackling age discrimination
by vigorously promoting the Code of Practice on Age Diversity
and the benefits to be realised. Indeed the evaluation of the
impact of the Code and a range of related research will report
by the summer 2001 and help to inform the targeting of our further
action to stop unjust discrimination. We must ensure all employers
understand the benefits of age diversity.
A Single Equality Act or Separate Acts?
60. We are at a very early stage of consideration.
We will want to take account, amongst other things, of business
views on issues of consistency and timing. We will need, also,
of course, to take account of what the Parliamentary timetable
Age Legislation Covering Employment
61. We attach particular importance to consulting
widely with employers and others to ensure a practicable and workable
approach. It is too early to give a considered and definitive
view. It would not be helpful to speculate ahead of consultation
and discussion. Our commitment is to implement the Directive,
which is confined to employment and vocational training and guidance.
Burden of Proof
62. Article 10 of the Directive provides
for the burden of proof to shift to the respondent only after
the complainant has proved facts establishing a prima facie case
of discrimination. This will not require a particularly significant
change from the practice currently applied by employment tribunals
in Great Britain in race and sex discrimination cases following
the judgment of the House of Lords in Zafar v Glasgow City Council
 IRLR 36. In essence, that case set out that, where an applicant
produces compelling evidence of discrimination, a tribunal is
entitled to infer that the employer is indeed guilty of discrimination
unless the latter produces a satisfactory explanation. However,
the Directive will require this approach to be formalised as a
rule of law. The same will apply in the context of sex discriminationby
virtue of the Burden of Proof Directive 97/80/EC, and in the context
of race discriminationby virtue of the Race Directive 2000/43/EC.
Exceptions and Derogations on Age
63. We have not yet decided how the derogations
provided for in the Directive will be transposed into national
law. We intend to carry out an extensive consultation exercise
before making firm decisions in this respect, or before starting
to prepare draft legislation. But it should be borne in mind that
the derogations are permissive only, and are likely to be construed
narrowly by the European Court of Justice. It will therefore not
be open to the Member States to provide for sweeping, open-ended
exceptions that would undermine the whole purpose of the Directive.
This Government would not want to do so in any event; indeed we
are committed to developing workable legislation which will produce
a fair balance between the legitimate needs of employers on the
one hand, and the need to eliminate age-related prejudice on the
Occupational Pensions and Retirement
64. In light of Article 6.2 of the Directive,
the United Kingdom (and other Member States) will be entitled
to exclude the fixing of ages for admission to, or for entitlement
to benefits payable under, occupational pension schemes from the
scope of the legislation implementing the age provisions of the
Directive. Our current intention is to make use of this derogation.
65. There is no such derogation in respect
of compulsory retirement ages. They will be unlawful unless employers
can show that they are objectively justifiedin accordance
with criteria specified in legislation transposing the Directive.
In fact we are already promoting the concept of flexible and phased
retirement for the benefit of employers and individualsand
the business benefits of existing good practice.
Timetable for Implementation of Age Legislation
66. We currently anticipate that legislation
implementing the Directive would not come into force until December
2006. As mentioned above, it will take time to produce workable
legislation and clear guidance; and employers will need time to
prepare for the legislation. The exact timescale will be determined
in the light of responses to the wider consultation exercise.
Implications for the Non-Statutory Code of Practice
on Age Diversity
67. The evaluation of the impact of the
Code, and how it has worked in practice, will help to inform our
decisions towards the shaping of age legislation and any statutory
codes of practice supplementing that legislation. The scope of
the voluntary code is, of course, narrower than that of the Directive.
The Code has provided an essential foundation for tackling age
discrimination. The evaluation, and related research will report
fully by the summer and provide useful information towards wider
and extensive consultations with employers, individuals and expert
groups, covering issues raised by the scope of the Directive.
Department for Education and Employment
1 McKay & Middleton (1988). Back
Ibid 1. Back
Evaluation of the Code of Practice on Age Diversity in Employment:
Interim Summary of Findings From Wave 2 (June 200). Back
Drury (1993), Walker, A (1993), Taylor, P. (2000). Back
Taylor, P. "Factors Affecting Retirement Behaviour",
Taylor & Walker, 1993. Back
Chartered Institute of Personnel and Development (CIPD), January
Ibid 4. Back
Campbell, N. (1999), Walker, A (1993), Taylor, P. (2000). Back
Education and Training Statistics for the United Kingdom, DfEE,
Kodz, J et al, (1999), Taylor, P & Walker, A. (1995),
Metcalfe and Thompson, 1990). Back
Social Focus on Older People, ONS, 1999. Back