Memorandum from The Carnegie Third Age
We have corresponded earlier about your Committee's
inquiry into age discrimination in employment. I refer in particular
to your letter of 16 November 2000 and am writing as you requested
to submit some views on the question by your deadline of 19 January.
No doubt the nature of your inquiry will have
been significantly altered by the announcement by the Government
last October of its acceptance of the EU Equal Treatment Directive
with a commitment to introduce legislation against age discrimination
within six years from that time.
In view of this commitment, which is most welcome
to us, there seems no further need to offer arguments as to the
necessity or otherwise for such legislation and the debate now
moves to how this commitment should most effectively be implemented.
The major outstanding points which I would wish
to offer to the Inquiry are therefore as follows:
We would urge that the commitment on age legislation
is taken forward in the wider context of other equal opportunity
obligations, both as they exist now and as they will be when the
Directive is implemented. In particular, we see significant advantage
in moving to an arrangement whereby:
(a) there is a single statutory obligation
not to discriminate unfairly in employment on any ground; and
(b) a single integrated commission charged
with addressing all forms of equal opportunity.
In pressing for this more integrated approach,
I would draw the Committee's attention to our own report Equal
Opportunities: A New Approach, of which you have a copy, and the
report chaired by Professor Hepple at Cambridge, Equality: a New
Framework. The former provides evidence of widespread employer
support for such an approach. The significance of the latter,
apart from its wealth of detail on the topic, is I suggest the
degree of support for integration which it commanded from CBI,
TUC and the existing equality commissions.
There is inevitably a certain amount of vested
interest on the part of the existing commissions, given the restricted
nature of their remits, in maintaining the status quo. However,
the qualified support which they felt able to give to Hepple suggests
a recognition of the significant advantages which would come from
such integration. Outstanding among these is the opportunity it
would provide of moving from a prohibitive and negative approach
to a positive encouragement to employers, backed by the law, to
base their employment policies on treating all individuals on
On balance, I would prefer to see an integrated
equality commission operating alongside rather than as part of
a Human Rights Commission, if the Government decides to create
Finally on this aspect, I suggest that if the
Commission favoured this integrated approach, it would be well
placed to suggest a parallel integration of the various employer
bodies working to provide equal opportunitiessuch as the
Employers Forum on Age (EFA) and the Employers Forum on Disability.
I suggest that there is an urgent need to set
in place arrangements to monitor the extent of age discrimination.
At present, the evidence that the UK faces a significant age discrimination
problem stems from a whole range of unsystematic research together
with strong anecdotal evidence. There is a need to build on the
arrangements which the Government has set in place to monitor
the progress of its Code of Practice so that, as the time for
legislation approaches and once it is established, systematic
and regular monitoring can determine whether or not the problem
is getting better and statutory and institutional arrangements
can be adjusted accordingly.
Although I appreciate that this is outside the
present remit of the Committee, the implication of the integrated
approach suggested above, given the nature of the existing statutes,
is that an integrated statute should apply not only to discrimination
in employment but also in the provision of goods and services.
It may be that, if the logic of the integrated
approach is accepted, Government might wish to adopt a phased
approach to its introduction. In that event, the extension of
legislation from employment to goods and services could be achieved
on such a phased basis. Whichever way it is done, my view is that
legislation should in due course cover all aspects.
4. INTERIM ACTION
I suggest that, as well as designing the statute
itself, there is an important role for Government in preparation
for legislation in influencing employer behaviour and attitude
about age discrimination. So far this has been limited to the
Government's Code of Practice. I believe that a fresh approach
should be taken to this task.
The existing Code was drawn up in a non-legislative
context and designed to persuade employers to act on a voluntary
basis. The Government's own research, although not as I understand
it complete, seems to confirm wider perceptions that the impact
has not been major. The prospect of legislation now puts this
in a new setting and provides a new opportunity for higher impact.
It seems to me that the line from Government
to employers should be similar to that taken when earlier discrimination
statutes on race, equality and disability were being introducednamely
to make employers fully aware that legislation is coming, that
there is time to prepare for it and that the employer who does
so has nothing to fear from itand then to set out detailed
advice, building on the Code but drawn up in parallel with the
Government's plans for the statute.
5. CONTENT OF
The content of legislation will of course depend
partly on whether the statute applies only to age or, as suggested
above, to all forms of equality.
Either way, there are some aspects which will
be peculiar to age. I would draw the Committee's attention to
these matters to the work of the EFA, who some time ago, while
remaining neutral on the desirability of legislation, assembled
recommendations on the form which any age discrimination legislation
However, with the advantage of reflection, I
would now take the view that a discrimination statute should prohibit
mandatory retirement ages. This would be a difficult pill for
some employers to swallow, but a few more progressive employers
are now starting to show the advantages of operating without compulsory
retirement, making the continued employment of individuals, regardless
of age, dependent only on an objective assessment of their performance
Another difficult issue will be the question
of derogations from a statutory requirement in the case of genuine
occupations requirement. Examples of actors and air traffic controllers
come to mind. I suggest that the guiding principle here should
be that such derogations should be tightly drawn, and should not
open the door to abuse by enabling employers to act on assumptions
about age and capability which are not based on sound evidence
I hope these comments are helpful and would
be happy to amplify them in any way you might wish.
The Carnegie Third Age Programme