Are new initiatives to tackle age discrimination on their way?
Rachel Crasnow QC
In this blog, Rachel Crasnow QC considers the recent proposals to reform the Equality Act 2010 outlined by the Women and Equalities Committee in its report concerning Older People and Employment which was published on 17 July 2018. Their proposals were formulated after hearing expert evidence from a range of people including Cloisters’ Dee Masters.
A copy of the report is available here.
Context
Research reveals that by the mid 2030’s half of all adults in the UK will be over 50 years of age (Department for Work and Pensions, Fuller Working Lives: evidence base 2017). Despite this startling statistic, there are real barriers to older people entering and remaining in the workforce. One paper suggests that there are up to 1.4million people aged between 50 and 60 who involuntarily left the labour market. The Women and Equalities Committee decided to examine whether the Government’s Fuller Working Lives strategy was working and if additional actions could be taken to encourage older people to work and to work for longer.
The problem
The Women and Equalities Committee heard significant evidence that older people faced overt and “undercover” age discrimination in the workplace driven partly by misconceptions, for example, that young people were cheaper to employ and more productive. The Committee also recognised that there was a cultural attitude within some employers to the effect that older people were obliged to “make way” for the next generation. Further, older people were undermined by the interplay between age and other protected characteristics like gender since older women often have caring responsibilities beyond their own children.
Possible reform to the Equality Act 2010
A central plank to the Commission’s report is that the Equality Act 2010 does not, in practice, adequately prevent age discrimination. Accordingly, a whole raft of initiatives have been proposed which would impact on the Equality Act 2010 if implemented:
A mandatory duty to publish the age profiles of employees for organisations with over 250 employees.
All jobs should be available on flexible terms as a default unless an employer can demonstrate an immediate and continuing business case against doing so.
A governmental review of the decision not to implement s.14 Equality Act 2010, which prohibits combined discrimination claims based on age and another protected characteristic, like gender.
Greater availability of paid and unpaid leave for carers who are non-parents.
A greater role for the Equality and Human Rights Commission. In particular, the Committee wants to see the Commission creating a new action plan to tackle age discrimination in recruitment, review the public sector equality duty and identify age discrimination claims which require legal support.
Conclusion
The Committee has undoubtedly recommended many positive steps in the right direction in order to tackle age discrimination. A mandatory duty to publish the age profile of employees is likely to be particularly powerful. After all, a similar provision in relation to gender pay reporting has created huge public pressure on companies to address pay inequality. However, there were additional steps which the Committee could have recommended. A more radical proposal, which the Committee was also addressed on, would have been the re-introduction of the questionnaires procedure so as to allow employees or potential employees to understand better whether they have been the victims of discrimination. All too often, older people do not litigate because whilst they suspect discrimination, they are provided with little information or insight into how decisions are made, especially discriminatory recruitment decisions where an older candidate is likely to know very little and perhaps nothing at all about the decision makers and their thought process. Although, of course, it is recognised that legislative reform can be slow and any incremental steps towards improving the working lives of older people must be applauded.