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With these amendments, I am not seeking to have freedom now. I appreciate that it is impractical to say that as soon as the Bill becomes law that is an end of the matter; there must be some breathing space to allow that to happen. At this stage, I am probing in the hope that the Minister will be able to say something positive other than that the matter is being looked at. I beg to move.

Baroness Turner of Camden: My Lords, these amendments, which I support, have been grouped with my own Amendment 104, to which I should also like to speak. As the noble Lord, Lord Lester, has indicated, this is a discussion about the default retirement age. This matter has been raised in the House on a number of occasions and the Government have indicated that it will be reviewed in, I think, 2011. However, the Bill gives an opportunity for the review to take place now, and there is no doubt that there is considerable pressure for that to happen.

Interestingly, Saga Magazine, which is devoted to the interests of older people, has produced a manifesto for older people which it says is based on considerable research. It calls for the end of the default retirement age. It says that this is in line with the demands of older people. Nine out of 10 people polled thought that it was unfair and said that they would have liked to continue working if they had had the chance to do so.

Forced retirement is seen as an anachronism from the past when life was shorter and rigid working patterns were the norm. The demand now is that flexible working arrangements should be available so that older people can continue in appropriate forms of work, which would be to their advantage. The employer will benefit from having older people with experience, skills and more commitment in the workforce. I emphasise that this should be a matter of choice for older people and should not be imposed on them as a result of poverty or because there are inadequate pension arrangements. However, the Government have an opportunity in this Bill to deal with the review in the way that has been suggested.

As regards Amendment 104, your Lordships may recall that some time ago we had a debate in this House about the employment rights of older workers,

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which was prompted by a number of issues. Obviously, we are all living longer, which is a cause for celebration, although it causes governments and private providers to reconsider pension arrangements. There was some evidence that when older workers became redundant they found it much more difficult to secure other employment. There were increasing concerns about the social care of older people, which caused everyone to consider their situation.

As I have said, there is a fair amount of agreement that we may all have to consider working beyond what is considered to be the normal retirement age. I and others feel that it could probably be dealt with now through the review that we have indicated. The Government clearly want a longer time before the state pension is paid. Of course, there are always likely to be occupations where it is advisable to have an early retirement arrangement; for example, on safety grounds, as in the construction industry. But many jobs could quite well be done by older people, perhaps with the benefit of their experience and their skill. However, there is not much point in extending the time in which people are expected to continue in work and therefore do not receive the state pension if no work is available for them and they simply switch to jobseekers' allowance instead of receiving the pension. Work of an appropriate kind must be available.

We are seeking a more flexible approach from many employers. Age discrimination should be firmly outlawed. Things have to change. My amendment seeks the introduction of what could be called "age auditing". Something similar is provided in the Bill in regard to gender. Why not do it for age? Demographic changes will make it necessary for us to reconsider many of our attitudes. I therefore urge the Government, even if they do not accept our wording, at least to consider the introduction of something along these lines. There are benefits in taking steps to encourage people who wish to continue in work to enable them to do so. There are health benefits-older people with a continuing involvement in an appropriate work environment are healthier and feel less isolated. Employers benefit from having an older, experienced and often very committed number of older people in their workforce. The profiling suggested in my amendment will generally assist towards that outcome. I commend the amendment to the Minister.

Baroness Morris of Bolton: My Lords, given the opening remarks made by the noble Lord, Lord Lester, I feel that I must declare that I am under 65, so if this proposal came in it would apply to me.

I listened with great interest to the noble Lord's speech, which has raised the important issue of the default retirement age. We are all aware that the state retirement age is 65. However, an ever-ageing population is calling this into question for a number of reasons, which are partly concerned with money. It costs the state a large amount of money to fund pensions from the age of 65 when many people are still willing and capable of working, and are likely to live for another two or, hopefully, three decades. The reasons are also tied into the different wants and needs of an ageing population. The increase in life expectancy means that someone aged 65 can still be at the top of their game

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and be an effective, able, competent, experienced and valuable worker. They may not want to retire this early. Your Lordships' House is a very good example.

Therefore, we on these Benches feel that we could support the removal of the default retirement age in principle. We have long believed that retirement should be a process and not an event. However, we believe that there are a great many complications with removing the default retirement age, especially in this time of very bad recession. We are worried that moves to remove the default retirement age might have a further detrimental impact on the large numbers of young people who are out of work at present. Also, under current law, if the default retirement age is removed it could be difficult for employers to ask older employees, who may not be as proficient at their jobs as they used to be, to leave, as the noble Baroness said, for reasons of safety. Under the current rules it is realistic to suppose that if an employer were to ask an employee to leave, that could result in disciplinary action or claims of wrongful dismissal, and that concerns us. That would also not be good for the employer or the employee. Perhaps some kind of mutual discussion regarding retirement would need to be instigated.

Many options need to be considered carefully and I know that the Government are reviewing this at the moment. In her winding-up speech at Second Reading, the Minister made it clear that the Government would not consider it,

Changes to the state pension age are not to be made by this Government until 2026. In contrast, we on these Benches have said that we will hold a review into bringing the increase in the state pension age forward but starting no earlier than 2016 for men and 2020 for women. I wonder whether the Government's policy regarding the state pension age changes also reflects their intention that there should not be any changes to a default retirement age until 2026 at the earliest. Perhaps the Minister will clarify that, although I see her shaking her head vigorously.

The point raised by the noble Baroness, Lady Turner, is valid. She has floated the possibility of raising the retirement age but, in so doing, it would also be worthwhile assessing what manner of work remained available for older people to do and what could be done to assist them. She has mentioned the possibilities of extra support directed towards the older worker or perhaps flexible working to allow them to remain comfortable in their jobs for a longer time. These are all interesting ideas and should be taken into consideration very seriously.

The noble Baroness, Lady Turner, has further suggested, with her amendment, that perhaps instead of a general review, it would be better for the Secretary of State to pass regulations which would allow a general audit of all companies employing more than 250 employees. I agree that there is a need for some form of assessment to be made but is this the way best way to go about it? The Government are already proposing to pass regulations to burden companies

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with gender pay audits and to add age to that could serve to make that load even heavier. I imagine that audits would be far more complex than just writing down the ages of all those in the company. To do a proper audit, which would aid assessment of what support older workers need, what changes would be needed to address their concerns and perhaps how to attract more older and experienced people to stay, would involve complex metrics and different questions. That might risk overburdening companies at a time when they most need support. I look forward to hearing the opinion of the Minister on this issue.

The Lord Bishop of Chester: I would like to make two points. The first has been made by the noble Baroness, Lady Morris, that the rights of older people have to be balanced against the rights of younger people in our society. It may be entirely proper to look at the way in which that is codified. One has to take a view of the whole of society and not just the individuals within it. I made that point strongly at Second Reading and it illustrates the point in this other area. I shall say no more about that.

Secondly, I suggest that this is an area which the church has already visited. Until 1975, there was no mandatory retirement age for clergy, and so we can bring experience to the debate. Clergy who were appointed to their posts before 1975 could stay in post until they died-and in one or two cases perhaps even beyond that. We introduced a retirement age of 70 in the Ecclesiastical Offices (Age Limit) Measure 1975. Prior to that measure, there was a problem with people staying in post too long without a proper review structure. People's performance in office does not deteriorate overnight: it deteriorates gradually, as was said. It is difficult to raise these issues with people unless there is a clear structure for doing so. Introducing a capability process would be a sledgehammer in these circumstances. Careful consideration is needed.

At the moment, the church has a default retirement age of 70, which society is moving towards. We have just reviewed our processes, as noble Lords will know, and while clergy are officeholders and not employees, we try to shadow the provisions in employment law. Under the new common tenure arrangements that will come into force in a year's time, the default retirement age of 70 will remain in place, but it will be open to a Bishop to license somebody on an annual basis thereafter-with strict limitations on rights beyond 70, but with the possibility of working beyond that age.

In going along with the spirit of what the noble Lord, Lord Lester, is proposing in his probing amendment, I ask whether he accepts that there would need to be a structure that prevented the rights of older people being individually exercised to the detriment of society as a whole, and whether that would take into account any gradual deterioration of performance, which would need to be done sensitively.

4 pm

Baroness Greengross: My Lords, I support the noble Lord's amendment, having campaigned for this since the 1970s, as does the Equality and Human Rights Commission of which I am a member. We cannot put

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everyone of the age of 65 and over into one pot and say that they are all the same. We know that there are numerous people who are "over the hill" at the age of 35 and many others who are well over the default retirement age and who are active and capable of doing extraordinarily good work in whatever field they work. It is ridiculous now to assume that everyone is the same.

For many years, retirement age was seen as a form of kindness. It was part of the introduction of pensions and retirement as a concept, which was humane. It gave people a chance to have a little bit of leisure-not often very long-before they died. But longevity increasing all the time has made a big difference to that. We now have a new cycle of life and we must think again about what that means. It is terribly important that we stop patronising older people. That does not mean that everyone should be allowed to go on working whether they are good at their job or not: it means that much better management is necessary. Middle managers in this country are not always as talented as they might be. They must learn how to appraise people throughout their working careers, change people's jobs to suit their changing aptitudes and help them to move around within an organisation or in different organisations throughout their working lives. We cannot go on thinking the way we used to do about a lifetime's career.

I would hate to see any young person waiting for what is commonly called dead men's shoes. That would be appalling. In our anti-age-discrimination legislation, it is not possible for that to happen because we have a duty to look after young adults as well as old adults. It also assumes a pool of labour that is precise and does not change. Of course, that is not true. The labour market is not like that: it is much more flexible. Jobs appear where there is a need for a job and circumstances change all the time, as we heard on the radio and TV this morning, with employment beginning to pick up a little. This is not a fixed thing in our agenda: it changes and people change.

The EHRC supports the amendment because we believe that removing the default retirement age would put age discrimination legislation on an equal footing with the other equality strands. It would also make the law simpler and clearer both for employees and employers. It is a blatant form of age discrimination to say, "Yesterday, you could do your job, but it is your birthday today, so now you cannot". In this day and age, it is quite unacceptable to do that.

I understand that employers have grave worries about this. Many think that it will mean a lot more bureaucracy, red tape and legal claims. The guidance that the commission and other bodies, such as CIPD, will produce will make this easier for managers and employers and should help to make that adjustment easier to come to terms with. I learnt a lot about this from the United States, which has had legislation banning age discrimination since the 1960s. I have spent a lot of time with American employers, employees, future employees and trades unions. They have not found that the number of age discrimination cases rose; on the contrary, they fell when the mandatory retirement age was banned. They look after the older age group only in terms of age discrimination, but we look at both ends of the age scale. As we know, there

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are positive business and economic benefits if we can scrap the mandatory retirement age. It is not just the demographic situation that makes it essential that we do so, but that is something to think about. By 2021, there will be a further 4 million older people and 1 million fewer adults under 50, so it is inevitable that employers will have to rely on a more age-diverse workforce.

We must do something about this. We must remember that these amendments would not prevent forced retirement altogether. Employers could continue to operate mandatory retirement ages for certain jobs if they could be objectively justified. We could produce examples where it would be common sense to assume that at a certain stage in life the risk was greater than the benefit of staying in a job; for example, Boeing pilots aged 94. That would continue, as that is an objective reason for keeping a retirement age.

If these amendments are accepted, an employee who faced dismissal could bring an employment tribunal claim arguing that a mandatory retirement age was an unjustifiable exception to the general rule against age discrimination. I hope that noble Lords will support this amendment.

Baroness Howe of Idlicote: My Lords, I support this amendment. At Second Reading, I said that there is no reason for not getting rid of the default retirement age right now. I stick to that view. A mix of younger and older people is thoroughly desirable because you have experience and background and youth and vigour. In the past, executive company directors used to retire gradually. Their experience was available for their company to call on over a period of time. I see no reason why that sort of flexible working arrangement should not be made more available depending on what the individual and the company need as it progresses its jobs and vacancies.

We also need to remember that women have had less opportunity to earn a decent retirement. It would be a great pity if they were cut off from the period when they were looking after grandchildren or helping in other social work and voluntary activity for part of their time. I am entirely in favour of both amendments.

The amendment of the noble Baroness, Lady Turner, is very interesting and may provide an insight. I would not wish for that requirement for an age profile to be made mandatory at this stage. However, as a voluntary activity, it might set a good example of why one might want to join a particular company. I back that amendment also. I hope that the Minister will provide some encouragement. If we do not take this opportunity, when will the next one be?

We should pay more attention-I remember fighting on this issue with Lord Dearing, who, sadly, is deceased-to ensuring that there are more facilities to allow older people to re-train or to take up interests that they have wanted to do for most of their lives but have not had time. That would keep them young and flexible and they would not have been an additional cost to the NHS. I fully support the amendments.

Lord Pannick: My Lords, I, too, support these amendments, not just for all the reasons of policy and practice that have been so ably deployed on all sides of

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the Committee, but for reasons of principle. Paragraphs 8 and 9 of Schedule 9 offend the very basic principle of equality law and of the Bill, which is that people should be judged by reference to their individual characteristics, abilities, conduct and potential, not by reference to something over which they have no control and which has no necessary relevance to their ability to perform the job or other function. That is what is so objectionable about the present law.

These provisions will have the inevitable consequence of causing unfairness to tens of thousands of employees who have worked to very high standards and are being dismissed for a reason over which they have no control. I recognise the practical difficulties to which the noble Baroness, Lady Morris, referred. I hope that the Minister in her reply will tell the Committee that a sunset clause will be added to paragraph 8 whereby experienced and competent employees are no longer able to be consigned by their employers to a sunset home.

Lord Campbell-Savours: My Lords, I oppose the amendment, which I regard more as a probing amendment at this stage, and support the review. While I would not wish to appear reactionary, I wish to comment on the practical difficulties that should be firmly considered in the review. I recall debates on these issues in the early 1980s. I remember in the House of Commons that, repeatedly over a number of years, many speeches were made by Labour Members and others asking for early mandatory retirement as a way of resolving problems in the jobs market. Indeed, I remember that at that time the Conservative Government introduced the job release scheme. Its objectives were-if my recollection is correct-to take older people out of the jobs market and replace them with younger people. A Department of Employment survey at that time showed that only a quarter of the jobs released under the JRS went to young people.

Three-quarters of them went to workers in the middle range of age in conditions of high unemployment, particularly in the industrial regions of the United Kingdom. My former constituency, Workington, was an industrial seat. The attitude of industry was therefore very important in the consideration that I made at the time about the extent to which it ought to be taken into account.

Secondly, before going into Parliament in the 1970s, I built up, ran and subsequently sold out a manufacturing company. I remember my own experience at the time in this area with a couple of employees; we are going back over 30 years.

I am not completely opposed to the idea of removal. However, I hope that the review considers fully where in the jobs market a greater flexibility might be more suitable. I notice that the brief sent by Age Concern claims that:

"Business leaders sometimes claim that it is impossible to carry out succession planning without using a mandatory retirement age",

but it goes on to talk about the United States, Australia and Canada. It says:

"In the UK, many large business groups (including several members of the CBI) operate without recourse to a mandatory retirement age, including the following members of the Employers Forum on Age".

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It goes on to list Asda Stores, Nationwide Building Society, B&Q, Centrica, Barclays plc, Marks & Spencer, Sainsbury's plc, the Co-operative Group, JD Wetherspoon and BT. What struck me about that list is that they are primarily high street names. I accept that there are certain parts of economic activity in the United Kingdom where the mandatory retirement age is not relevant and where it may well be that employees over the age of 65 can work quite safely in conditions where they can manage the strain or the taxing nature of employment-but what about shipbuilding? What about construction, the steel industry and heavy engineering? What about areas of maintenance or widespread areas of British manufacturing industry? What about vehicle manufacturing?

I would argue that when people are over the age of 65, working has all kinds of implications for health. When the review takes place, it might be that in certain sections of industry it could be considered impractical to give people the right to say, "I wish to stay", and stay. There are existing appeal procedures whereby you go to your employer at the age of 65-I would apply this to those sections of industry-and say, "I would like to keep my job. Will you consider me? I am still capable of working in that particular sector". The issue of capability is critical here. In those circumstances they should stay, but employers in parts of heavy manufacturing and certain other areas of industry should not be required to retain labour in the event that they feel that it is not in their interests to do so.

There are legal implications. If people say, "I want to work" but the employer then appeals because they still have a right to dismiss, the employer might find themselves in a difficult position legally and find it difficult to afford legal action so might, in those circumstances, simply concede and be required to hold that labour.

I am also worried, as I say, about the question of job-blocking for young people. In the debates that took place in the 1980s, it was argued all the time that retaining labour over a certain age meant that young people were not given opportunities in the labour market. That must inevitably be the case. Whereas then they were arguing that job-blocking was a problem, today we are arguing that job-blocking is not a problem, although the evidence must essentially be the same. Will that be considered in the review?

Finally, why 65? I understand that with the raising of the pension age an argument might arise, but why 65 and not 66 or 67? Is there some other consideration in mind that prevents us moving at this stage, perhaps as a proposal from the review, to lift the age by a year or two? We should not leave it open-ended, whereby industry, and the sectors that I have referred to in particular, is required to hold labour which it feels in the circumstances unable to do.

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