2The impact of age discrimination on employment
Ageism and age discrimination
13.Age discrimination in all its forms is against the law and, in employment, has been for more than 12 years. The UK has had a ban on age discrimination in employment since 2006. In 2010 the Equality Act brought all the different anti-discrimination laws together into a single statute, including the ban on age discrimination. Despite this, when we asked witnesses what they thought was the most significant barrier to older people working, almost all told us that it was age bias and discrimination, most significantly in recruitment. Yvonne Sonsino, a partner at Mercer and the Co-Chair of the DWP Fuller Working Lives Business Strategy Group described such bias as “rife”,22 as did Age UK.23 Age UK told us:
We do still hear of instances of overt discrimination, for example one jobseeker contacted us saying she had been told ‘the law covers sex and race, but not age’, and another who said ‘I told them I was 62 they then said I was too old and they wouldn’t be able to find me any jobs. I told them I felt this was discriminated against they said ok we’ll take your details but we won’t find you a job.’24
14.More common, however, was more ‘subtle’ ageism such as selecting older workers for redundancy.25 Ageism could also take place at a subconscious level, for example when a manager “unthinkingly relies on a negative stereotype in making a decision.”26 Many witnesses pointed to the impact of wider ageism within society on employers, citing the greetings card industry as an example of “casual ageism” which reflected the attitude that it is still acceptable to make jokes about people’s age.27 Such attitudes among the public, it was argued, translated into the workplace, influencing the attitudes of employers as members of the public themselves.28
15.These views were strongly corroborated by the individuals we heard from. A group of older job seekers told us in no uncertain terms that age discrimination was a regular occurrence.29 One individual “over the usual retirement age” who wrote to us described his experience of seeking to access a Job Club at his local Jobcentre Plus. On arrival he was asked his age and, when he told them, he was “summarily and brusquely thrown out—‘we don’t deal with people like you’.”30
16.Ben Willmott, Head of Public Policy at the Chartered Institute of Personnel and Development, told us that that their research had shown significant “bias and myth” about older people—particularly among managers:
It is things like, ‘Older workers are just waiting to retire’, ‘They will not necessarily work as hard’, ‘They will not want to learn new skills at their age’ or, ‘They will not stay as long.’ Actually, all of those are completely wrong.31
17.There are four main misconceptions that seem to underpin employer bias against older workers: that younger workers cost less; that younger workers are likely to be more productive; that younger workers will provide the employer with more years of work; and that older people need to leave work in order to ‘make way’ for younger people. We heard evidence refuting all of these stereotypes.
18.Arguing against the assumption that older workers cost more, Yvonne Sonsino explained that:
If you look at jobs and the amount of money people earn in those jobs, and the trajectory of it with their age, as you get past 40, 45 or 50, the pay tends to tail off, by up to seven per cent in some jobs. Older workers in the same job are not paid more; they are paid less.32
Any difference in the cost of employing an older worker is not that they are inherently more expensive, but rather that “as you get [older], you typically get promoted.”33 As such, any difference in pay was due to seniority, not age.
19.Regarding productivity, Ms Sonsino explained that individual productivity may decline with age, but that overall, “having an age-diverse team can enhance your bottom-line profits and productivity results”. This was because older workers bring experience and skills and “tend to have better people skills and better anger management, so, overall, they are creating a new dynamic in the team, and these spillover effects stabilise the team.” She also argued that the turnover rate of older workers tends to be lower, reducing replacement costs.34
20.This point is also connected to the rebuttal of the third misconception: that an employer will get more years of work out of a younger worker. Dr Brian Beach of the International Longevity Centre UK cited evidence of turnover rates showing that, on average, an employer would get five years of work from someone who was over the age of 50 when hired, in contrast to two years of work from someone under the age of 50.35
21.The final assumption that witnesses associated with age bias among employers, and society more widely, was the view that older workers were ‘blocking’ jobs that would otherwise be available for younger people to take. Patrick Thomson of the Centre for Ageing Better explained that:
If you talk to economists, across the board people would say, across an economy, older workers are not taking younger workers’ jobs. There is not a finite number of jobs in the economy. Older workers in the economy can boost and build more jobs.36
22.Nevertheless that perception remains, and is often held by older people themselves as a form of internalised age discrimination. This is shown by older people not putting themselves forward for a job because of a belief that it “could be better used by a younger person”.37 Such internalised age bias can also be seen more widely; for example, Age UK told us:
People quite often believe the stereotypes about themselves as well. You could be looking through a list of jobs that might well be suitable for you, but then you are thinking, ‘Oh, I’m an older worker, so actually I’m not skilled enough. I don’t have the qualifications to do this job.’38
Enforcement of the Equality Act 2010
23.The Government told us that the Equality Act 2010 provided “strong protection” against discrimination and was working as intended.39 Our witnesses disagreed. Age UK didn’t want to see any significant changes to the legislation, but were disappointed that the ban on age discrimination was not better complied with, given it had been in place for over a decade.40
24.Dee Masters, an expert employment law barrister, was clear that protection was there “in theory” but too often not in practice. She told us there was a mismatch between litigation and the reality of discrimination, with far fewer cases being brought than the evidence suggests were happening in practice. Elizabeth Prochaska, Legal Director at the Equality and Human Rights Commission, agreed. She told us that the Commission’s enforcement work around job advertising showed that there was a real problem with age discrimination, but that:
We are not getting anywhere near the volume [of age discrimination claims] that you would expect, given what we are seeing in those discriminatory adverts and what we are hearing from evidence to this Committee.41
25.Julie Dennis of ACAS, who provide independent advice and conciliation services and must be notified before a discrimination claim can be lodged at Tribunal, told us that only 2 per cent of their workload had an element of age discrimination and only 4.3 per cent of those progressing to tribunal.42 The EHRC had supported a number of age discrimination cases in 2013–14 but, despite a stated intention to be a more ‘muscular regulator’,43 were currently only considering one age discrimination claim for possible action.44
26.While we heard much general support for the Government’s Fuller Working Lives strategy, many felt that it paid insufficient attention to age bias and age discrimination. The Centre for Ageing Better said that the employer-led approach will have limited impact on tackling age discrimination and wanted to see stronger enforcement, especially in sectors where age and gender discrimination were more prevalent. They were also concerned that a stronger message needed to be sent that the Equality Act applies equally to all employees regardless of age and that the duty to make reasonable adjustments—requiring employers to make changes in the workplace to remove barriers that put disabled employees at a disadvantage—applies to age-related health conditions as to any other disability.45
27.Age UK wanted to see the Fuller Working Lives strategy focus more on improving recruitment practice and breaking down unconscious bias against older job applicants.46 Yvonne Sonsino argued for more policing of protection against direct and indirect age discrimination.47 The Chartered Institute of Personnel and Development suggested that the Government launch an “Age Confident” campaign to combat “prejudice and stereotypical attitudes from employers, colleagues and society in general, relating to [older workers’] flexibility, health, ability to learn and their skills and qualification levels.”48 New Middle Age also wanted to see more work challenging stereotyping of older people.49
28.Ageism remains a significant problem within British society and is affecting the ability of people to continue working into later life, despite long-standing laws against age discrimination. Discrimination in recruitment is a significant problem and the public sector is not leading the way in the retention of older workers when it should be.
29.The Equality and Human Rights Commission is right to be concerned by the low numbers of age discrimination claims being brought to it, but given its ambition to become a ‘muscular regulator’ we are surprised that it is not taking more action to remedy this. We recommend that the Commission develop a clear plan to tackle age discrimination in employment. This plan should include:
a)Action to tackle discrimination in recruitment and the recruitment industry, using the evidence of age discrimination in job advertising that it holds as a result of its enforcement work in this area to identify the sectors with the worst record;
b)An agreement with the Equality Advisory Support Service to identify and refer claims of age discrimination in employment as a priority for legal support by the Commission; and
c)Action to examine whether the public sector is complying with its duty to have due regard to the need to eliminate age discrimination under the Public Sector Equality Duty.
30.The failure of the Government to include action to improve compliance with the Equality Act 2010 in its Fuller Working Lives strategy is a significant omission. We recommend that it engage with the Equality and Human Rights Commission with a view to agreeing enforcement actions that can be included as specific commitments in the strategy.
Older people with other protected characteristics
31.A further common theme was the way in which age discrimination interacts with other protected characteristics under the Equality Act. Age can be viewed as an “amplifier” of other inequalities, and older women are particularly affected.50 Not only are older women more likely to be carers, to work part time, to be in lower-paying roles,51 they also face direct prejudice that older men do not. Business in the Community told us that women over 50 “experience more bias, discrimination and wage inequality than both their male counterparts and younger women”.52 Older women experience “lookism” where they feel under scrutiny because of their age,53 and Age UK told us that:
Just the fact of being aged over 50 and a woman puts you at a significant disadvantage; men aged 50-plus are disadvantaged, and women aged 50-plus more so.54
32.After gender, disability was the most frequently cited characteristic that can exacerbate age discrimination.55 The prevalence of long-term health conditions and disability increases with age. Just under half of 50 to 64-year-olds report having a long-term health condition, with 23 per cent reporting two or more such conditions. Within this group, 27 per cent of 50 to 64-year-olds report having a disability compared to 15 per cent of 25 to 49-year-olds.56 There is significantly less research on the specific disadvantages faced by older people from black and minority ethnic groups, but the existence of such disadvantage was acknowledged by the Government.57
33.Witnesses were concerned that the decision of the 2010 Coalition Government not to commence section 14 of the Equality Act 2010—which would allow for claims to be made on the basis of two protected characteristics—obscured the real experiences of discrimination affecting older workers. At present an individual bringing a discrimination claim must bring evidence of each ‘element’ of a claim separately, and there was a suspicion that the ‘age’ element of a case may be being dropped in favour of the more familiar grounds of race or gender.58 The Equality and Human Rights Commission told us that they were surprised by how few age discrimination claims were coming through to them or to the tribunals.59 Dee Masters, a barrister specialising in age discrimination, argued that bringing section 14 into force would:
encourage people to bring the true case, if you like, which is the combination of protected characteristics, rather than being forced to segregate their claims into an age discrimination claim, a gender claim and a race claim. It would allow them to test the real prejudice, which is the new and unique identity created by the three protected characteristics coming together.60
34.This lack of clarity means that intersections with age discrimination are not visible in tribunal statistics. The problem goes deeper, however. Duncan Gilchrist, the Government official responsible for Fuller Working Lives, admitted that the Government does not make any specific assessment of how gender and age or race and age might intersect when delivering initiatives under the strategy, such as work with the construction industry or on those returning to employment. He did, however, acknowledge that there may be a need to build up the evidence base to enable such analysis.61
35.Older people are not a homogenous group, and public policy must be developed in a way that recognises the many and varied needs and aspirations of the ageing population.
36.The decision not to commence section 14 of the Equality Act 2010 means that the true nature of the discrimination facing older women, older disabled people and older people from black and minority ethnic communities may not be being brought to light in case law. We recommend that the Government commission research into the extent of this problem as part of its evidence base for Fuller Working Lives.
Recruitment bias
37.Baroness Ros Altmann’s 2015 report on working in later life found significant anecdotal evidence of discrimination against older job applicants.62 The Government’s own strategy, Fuller Working Lives, recognises that discrimination, whether conscious or unconscious, is one of the most significant barriers to the recruitment of older workers.63
38.Yvonne Sonsino and Patrick Thomson explained how discrimination in recruitment frequently plays out, citing research by Anglia Ruskin University that found older workers were 4.2 times less likely to get selected for interview than their 28-year-old counterparts. Some employers specified that candidates should be ‘young’, but more often they used words like “energy”, “enthusiasm” or “dynamic” as a kind of code, and older people’s CVs “just get sifted out”.64 The Equality and Human Rights Commission similarly told us of discriminatory job adverts asking for a “sparky office manager”, “young dynamic staff” and “enthusiastic young graduates”.65 This was not necessarily deliberate age bias. Christopher Brooks of Age UK explained:
They are not thinking, ‘We do not want an older person.’ They are just thinking, ‘We want someone who is x, y and z.’ Then they apply those characteristics and come up with someone who is probably not an older person.66
Tom Hadley, of the Recruitment and Employment Federation, acknowledged that any people-focused business such as recruitment, human resources or customer service, has a risk of bias. The challenge, he argued, is to overcome the tendency to default to recruit ‘in your own like’. He considered that employers were starting to take steps to address this risk such as investment in unconscious bias training.67 He was also clear that questions of inclusion were a high priority for employers and that the recruitment industry could play a key role in making things happen and “not just talking a good game.”68
39.Our evidence suggests that age bias, and probably even illegal discrimination, is a significant problem in our society and particularly in recruitment. This is not a problem for the recruitment industry alone, but the failure of that industry to take more robust action has a significant impact on older people’s ability to access work. The failure of the Equality and Human Rights Commission to use its extensive powers of investigation in the face of a growing body of evidence has to be addressed swiftly, particularly in light of potential reduction in inward migration as a result of leaving the European Union.
40.The Government should work with representatives of the recruitment industry to develop a plan of action to ensure that outdated stereotypes do not cause illegal age discrimination in recruitment. This should include the collection and publication of data on the age profiles of job seekers and those finding work. The EHRC should submit to us a clear plan of action including specific timeframes to investigate, intervene and enforce the law which prohibits discrimination based on age.
Transparency and accountability
41.Transparency can drive progress, and facilitate accountability for change. The Government has instigated voluntary publication by companies of data on women on boards, and has introduced regulations requiring large employers to publish data on their gender pay gap. Dee Masters connected these initiatives to the kind of cultural change needed to deal with age bias and discrimination: if employers were required to disclose data concerning the age make-up of their employees it would show where the issues lie, as an important starting point in achieving that cultural change.69
42.In February 2017, Andy Briggs and Business in the Community launched a ‘call to action’ in the form of a target for “one million more people aged 50 to 69 in work by 2022”, along with a call to employers to commit to collaborating with BITC to reach the target, and publishing the number and proportion of older workers in their workforce.70 An update on progress published in August 2017 stated that there were positive signs, but much further to go.71 However, despite asking employers to publish their age workforce data before the end of 2017, the BITC website only contains details of ten that have done so. Eight of these were also members of the BITC Age at Work Leadership Team. Five of the organisations represented on the BITC team had not yet published their data on the website. Of those that have published, the proportion of workers over 50 ranged from a high of 55.64 per cent to a low of 15.5 per cent. The proportion of workers aged over 65 ranged from 13 per cent to 0.2 per cent.72
43.Catherine Sermon of Business in the Community defended the limited numbers that had published their data, arguing that these were similar numbers to those employers who had voluntarily reported on gender pay gap reporting prior to the introduction of statutory regulations.73 While both she and Andy Briggs held back from asking for reporting on the age profile of employees to become mandatory—Ms Sermon arguing that “just crudely reporting” was not always the best way to get a focus on management practice—Andy Briggs was clear that “ultimately, my experience of working in business is that if things are measured and published, it does get greater focus within a business”.74
44.The TUC wanted to see employers required to survey their employees to establish the age profile of their workforce, as a precursor to consultations with older workers and trade unions on changes to enable them to stay in employment for longer.75 Teresa Donegan of UNISON argued that data was essential to employers’ ability to tackle inequality and disadvantage, and to the targeting of internal resources on factors such as training or recruitment practices. She argued that this would need to be mandatory because “you could wait forever and a day for things to be voluntarily introduced.”76 The Recruitment and Employment Confederation wanted to see more research to establish the case for and the practicalities of such reporting, but told us that they would be happy to work with the Age at Work Leadership Team to explore this issue further.77
45.Mark Holmes, Deputy Director of the Labour Market Directorate at the Department for Business, Energy and Industrial Strategy (BEIS) told us that he recognised the “value of the signal” that requiring data to be published sends. He was, however, concerned about the burden that publishing too many different data sets may place on employers, and so preferred a voluntary approach.78 Alok Sharma MP, Minister of State for Employment at DWP also preferred a voluntary approach. He told us that the Government already published broader labour force data as part of the Fuller Working Lives strategy, covering employment rates and gaps and changes to the average age of leaving the workforce. This, he told us, allowed the Government to monitor changes and see whether the policies in place were working.79
46.Data transparency can be an invaluable tool in understanding whether changes to policy and practice are having the desired effect—for both Government and employers. It can also encourage open discussions about age in the workplace.
47.We recommend that the Government introduce mandatory regulations to require all public-sector employers, and private and voluntary sector employers with more than 250 staff, to publish the age profile of their workforce.
22 Q15
27 Q39 (Yvonne Sonsino); Q41 (Christopher Brooks)
28 Q41 (Christopher Brooks, Age UK); Q145 (Ruby Peacock, Federation of Small Businesses)
29 Annex 1: Older people and employment outreach event, 1 May 2018
31 Q140
32 Q16
33 Q16 (Yvonne Sonsino, Co-Chair, Fuller Working Lives Business Strategy Group)
34 Q16
35 Q16
36 Q16
37 Q16 (Patrick Thomson, Centre for Ageing Better)
38 Q47 (Christopher, Age UK)
40 Age UK
41 Q49
42 Q57
43 Women and Equalities Committee Oral evidence: The work of the Equality and Human Rights Commission, HC 932, 18 January 2017, Q35 and Q37
44 Q57
47 Q19
50 Business in the Community (OPE0030); Fawcett Society (OPE0029); Centre for Ageing Better (OPE0039); Professor Sarah Vickerstaff (OPE0023)
53 Q38 (Dr Brian Beach, International Longevity Centre UK)
54 Q70 (Christopher Brooks, Age UK)
55 See for example: Fawcett Society (OPE0029); Unum (OPE0021); New Middle Age (OPE0025); Centre for Ageing Better (OPE0039)
57 Department for Work and Pensions, Fuller Working Lives, February 2017 at page 39, accessed 26 June 2018
58 Q57 (Julie Dennis, Head of Diversity and Inclusion, Advisory, Conciliation and Arbitration Service)
59 Q57 (Elizabeth Prochaska, Legal Director, Equality and Human Rights Commission)
60 Q76
61 Q246
62 Department for Work and Pensions, A new vision for older workers: retain, retrain, recruit, March 2015, page 38, accessed 26 June 2018
63 Department for Work and Pensions, Fuller Working Lives, February 2017 at page 39, accessed 26 June 2018
64 Q16 (Yvonne Sonsino, Co-Chair, Fuller Working Lives Business Strategy Group, and Patrick Thomson, Senior Programme Manager and lead on fulfilling work, Centre for Ageing Better)
65 Q49 (Elizabeth Prochaska, Legal Director, Equality and Human Rights Commission)
66 Q58
67 Q99
68 Q129
69 Q95
70 https://age.bitc.org.uk/BusinessChampion, accessed 26 June 2018
71 Business in the Community, One Million More. A progress report from the Government Business Champion for Older Workers, August 2017, accessed 26 June 2018
72 https://age.bitc.org.uk/BusinessChampion/Commitandpublish/workforcedata, accessed 26 June 2018
73 Q165
74 Q167
76 Q122
78 Q232
79 Q233
Published: 17 July 2018