Mr.
Drew: I hear what the hon. Gentleman says but, as so often
with these things, it may be a question of perceptions, rather than the
actual wording. He will have had cases, as we all have, in which there
is an obligation, almost, to look at the oldest person in the work
force, who may be close to retirement. Those people come under enormous
pressure to be the sacrificial lambs when it comes to redundancy. That
may well be something that that individual would welcome. However, I
have always been worried that with the mania for early retirement,
there is a cost that will come home to haunt us in due course. The
corollary of that is that if people wish to keep working for longer and
their employers see that as a jolly good thing, we should give every
encouragement for that to be the case, yet what we face is at least the
notion—I will not say that it is necessarily always the
reality—that we have a national default retirement age of
65. The
Government may have to resolve the issue themselves as a result of the
High Court ruling, but it would be good to hear what the Minister has
to say now. As always, I am trying to be helpful, to move with the
spirit of the times and to see whether we can resolve the issue so that
there is not any indirect ageism, whether we are talking about the
perception that people have to retire at that age or whether it is
stronger than that and the reality is that that is what happens. That
is why I do not mind at all taking over from my hon. Friend the Member
for Gateshead, East and Washington, West. It is good to have some
support from the Opposition, and perhaps even Labour Members, on an
important issue that could slip under the radar unless it is debated in
Committee. 6.45
pm
Lynne
Featherstone: I will be brief because I think that the
hon. Gentleman has made almost all the points I would like to make.
However, I shall use this opportunity to speak because the measure
flies in the face of the intent of the legislation. As the hon. Member
for Forest of Dean said, the provision is not mandatory; it simply
makes it legal for an employer to retire somebody without consequences.
The measure is an exception in the Bill and it should not be an
exception. One of the problems with centring the measure around a
particular age is that it creates the attitude around that age that it
is the end of the useful working period of somebody’s life. That
will therefore lead to discrimination and enable people to use that
exception to terminate people’s
employment.
Ms
Abbott: I listened with interest to what my hon. Friend
the Member for Stroud said. He talked about perception. We are in a
Bill Committee and we have to rest our arguments on the letter of the
law. There is nothing in the law as it stands to prevent an employer
who wants to keep a member of staff on after 65 from doing so. My hon.
Friend’s speech gave a different inference, but the letter of
the law does not prevent employers from keeping on people after 65.
What is more, many employers do—particularly when people have
specific skills or experience. Some employers, such as the retailers
Asda or B&Q, specifically recruit older people.
I am
concerned about pretending that an employee of 70 functions in exactly
the same way as an employee of 17. There is a case for mandatory
retirement for staff after 65. Such a measure would be a piece of
modernisation. During the Committee, it has been unusual for me to find
merit in employers’ arguments, but I do find merit in their
arguments on this matter. Even as we speak, many employers keep on
people over the age of 65. I am concerned that if we do not think this
through, under the guise of ending discrimination on age we will make
it harder for younger people to get their first job.
I speak as
somebody whose bias is all the other way. I am closer to 65 than to 17.
The last person in the world to accept that they are not functioning
the way they were when they were 17 is the person who is approaching
65. The current situation works well and it does not prevent employers
from employing anyone beyond the age of 65 if they wish to do so. We
should think carefully before altering that
situation.
The
Solicitor-General: I am pleased that my hon. Friend the
Member for Stroud has raised the issue. There have been some
interesting contributions—not least the last one. Despite what
my hon. Friend the Member for Hackney, North and Stoke Newington said
about the need to bring young people on, even a default retirement age
of 65 looks quite young now because 65-year-olds are not, by and large,
failing in the way that she points to. That is perhaps not the point
here, but I suspect that it is why this has become almost a totemic
issue for the age lobby. People seem to be cut off while they are still
in what they and other people might call their prime.
That default
retirement age came in with some 2006 regulations that delivered
significant other benefits—for example, upper age limits on
unfair dismissal and redundancy were abolished, and company retirement
ages lower than 65 were put up to 65, unless the reason for retaining a
lower one could be objectively justified. Schedule 6 to the regulations
contains a statutory procedure that includes a right for an employee to
request work beyond the age of 65, or the normal retirement age if
higher. That has been referred to by my hon. Friend the Member for
Hackney, North and Stoke Newington and the hon. Member for Forest of
Dean. One of the aims was to strike a balance between tackling the age
discrimination as it arises for individuals and allowing businesses to
operate productively but
fairly. An
obvious point is that that is a default retirement age, not a mandatory
retirement age. However, the Government provided for the age on the
basis of the evidence available in 2006. We have recognised that
circumstances can change and we have made a public commitment, whatever
happens, to review the default retirement age in 2011. As my hon.
Friend the Member for Stroud said, there might be need for action
earlier than that. The case brought by Heyday, which I think is the
trading arm of Age Concern, went to the European
Court, which held that the default retirement is available, but only if
it can be justified by a legitimate social policy
objective. The
case was sent back to the national court to determine whether the
legislation in the UK accords with such an aim and whether the means
chosen by the legislation were appropriate and necessary to achieve
that. The Court said that establishing that would require a high
standard of
proof. The
case goes back to the High Court in July, but an immediate outcome is
unlikely. It is much more likely that it will be autumn before the High
Court delivers its judgment. If the Court decides that the default
retirement age is not justified—or, rather, was not in 2006,
which is the precise question—the Court is likely to make a
declaration to that effect but not to strike out the regulation
straight away, we think, or rather we hope. That would give us time to
deal with all that follows and give business time to adjust to the
changes. In
no sense do I brush aside the importance of the issue in inviting my
hon. Friend to withdraw his amendment. What happens next will be
determined by the
case.
Mr.
Harper: The Solicitor-General highlights two different
issues that have come up. The first is about a default retirement
age—that concept—and the second is about whether 65 is
the right age. The hon. Member for Hackney, North and Stoke Newington
suggested and immediately leapt upon 70. Something that may be more
sensible and which the Minister could think about for discussion on
Report is whether, even if the default retirement concept stays, the
actual age might be better addressed in regulations, rather than in the
Bill. The
issue might need to be addressed because of the court case, but also
may well be something that changes over time. Given that Government
policy is to change the state pension age—we already know that
that is in progress—it might be sensible to keep the age under
review even if the concept of the default retirement age were to stay
in
law.
The
Solicitor-General: I can see that argument. It certainly
occurs to me, as I made clear, that 65 is now quite a young age for
such a provision. What I suppose would be of concern, even with a
different age limit, was whether it was not simply ageist to go on
using the person’s age, which is quite different from their
ability to do the job, as a way to get rid of them. However, I am told
that we could change the default retirement age through regulations if
we needed to do so, using section 2(2) of the European
Communities Act 1972, so we do not need to put that in
afresh.
Mr.
Drew: That was a useful debate. I know that we have a
slight difference over the age profile, but the debate is one that
needs to be aired. I hope that that issue will be clarified when we get
the Court judgment. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
Lynne
Featherstone: I beg to move amendment 246, in
schedule 9, page 184, line 39, leave
out paragraph 11.
An amendment to prevent discrimination
in the level of minimum wage based on
age. The
amendment follows the theme of whether it is justified to exempt young
people so that they could have differential pay rates. My understanding
is that as of 1 October 2008, there are three categories of
hourly rate—£5.73 per hour for workers aged 22 and over,
a development rate of £4.77 per hour for workers aged 18 to 21,
and £3.53 per hour for all workers under the age of 18 who are
no longer of compulsory school
age. I
have long thought that the variation in the minimum wage between 16 and
18-year-olds was iniquitous because the cost of things remains the same
whether someone is 16 or 18. A person can get married at 16. Loaves of
bread cost the same whatever a person’s age. Therefore, the
variation is totally discriminatory. I thought that the principle was
equal pay for equal work. I do not fully understand why we allow such
discrimination when in all other cases we say it is wrong to
discriminate. I would like the Minister to justify the
exemption.
The
Solicitor-General: Removing the youth minimum wage rate
would adversely affect employment levels for young people. Unemployment
rates are higher for young people and employment rates lower. Both are
far more sensitive to the economic cycle. We believe that continuing to
participate in education or training until at least 18 is in the
long-term best interests of people, but it is important that they have
chosen to work rather than stay in education, do not lose their jobs or
find it harder to access the important employment opportunities that
get them into the world of
work. The
exemption in paragraph 11, to which the hon. Member for Hornsey and
Wood Green has addressed her amendment, will not allow an employer to
pay different rates to employees who are within the age
bands—between 16 to 17 and 18 to 21. We rely on the independent
Low Pay Commission, whose report
said: “Young
people have continued to do less well in the labour market than older
workers and are particularly vulnerable in an economic downturn.
Therefore, we believe that lower National Minimum Wage rates for young
people are still justified in order to protect employment and at the
same time reflect the training element attached to younger
workers.”
Lynne
Featherstone: I understand the argument. The
Solicitor-General could say that women are paid poorly but if their
wages were to rise they would have trouble finding part-time work. That
argument could be extended to any group. One might believe that there
should be equal pay, but because a particular group is vulnerable in a
sensitive marketplace, they can be discriminated against and paid less.
I understand the argument, but it is not one to which I am overly
sympathetic. However, I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendments
made: 72, in
schedule 9, page 188, line 17, at
end insert— ‘( ) section
38(1) and
(3);’. This
amendment would bring Clause 38(1) and (3) within the scope of
paragraph 19(1) of Schedule 9. A principal would not then be liable
under Clause 38 for discrimination or victimisation relating to the
provision of a benefit, facility or service to the public (as in
existing
law). Amendment
73, in
schedule 9, page 188, line 26, at
end insert—
‘( ) in relation to section 38(1) and (3),
the other contract workers supplied to the
principal;’. This
amendment would provide that “comparable persons” means
other contract workers supplied to a principal, when determining
whether provision of a benefit, facility or service by a principal to a
contract worker differs in a material respect for the purposes of
paragraph 19(3)(a) of Schedule
9. Amendment
74, in
schedule 9, page 188, line 32, at
end insert— ‘( ) the terms
on which the principal allows B to do the contract work,’.
—(The
Solicitor-General.) This
amendment would provide that “B’s terms” means the
terms on which the principal allows a contract worker to work, when
determining whether the provision of a benefit, facility or service by
the principal is regulated by B’s terms for the purposes of
paragraph 19(3)(b) of Schedule 9.
Schedule
9, as amended, agreed
to. 7
pm Sitting
suspended. 7.15
pm On
resuming—
Clause
79Application
of this
Chapter
John
Mason: I beg to move amendment 100, in
clause 79, page 59, line 37, leave
out paragraph
(c). Hopefully,
I shall be brief. The clause deals with education and schools, and
specifically when discrimination is allowed. The purpose of the
amendment is to seek an explanation of why pregnancy and maternity are
not protected characteristics when it comes to education, and I am
grateful to Liberty for its help. A woman who is treated less
favourably because she is pregnant or has recently given birth is
protected, so why is that protection not extended to younger women in
schools? We all know that young mothers and expectant mothers
can—and do—experience discrimination and disadvantage at
school, and there is research to support that. They are also less
likely to have
qualifications. For
starters, can the Solicitor-General reassure us that the Government do
not intend that pregnant girls should be excluded from education merely
on the grounds of their pregnancy? The explanatory notes
state: “It
is not unlawful discrimination for a school to organise a different
timetable for a pupil who has a baby, to help her fit her education
with her parenting
responsibilities.” That
is fine and good, but it seems an excessively wide exemption to achieve
that end. After all, an employer might also organise a different
timetable for a new mother returning to work to help her, and that
would be acceptable and even encouraged. So why is a much wider
exemption being given to schools than to employers? If such matters are
not covered by the Bill, will the hon. and learned Lady reassure us
that protection will be provided in some other
way?
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