Women and Equalities Committee publishes results of inquiry into ageism at work — age discrimination

The talents of over 50s who want to work are being wasted because of age discrimination and bias, according to the findings of an inquiry conducted by the Women and Equalities Committee (the Committee). A number of reforms to employment law have been suggested by the Committee to help reduce the problem.

The scope of the inquiry

The inquiry was initially opened before the last general election, but had to close early when the election was called. It was reopened again shortly thereafter.

A key aim of the Committee’s inquiry was to determine the sufficiency of “Fuller Working Lives” (FWL), a Government strategy to reduce the number of older workers leaving the labour market early.

FWL was criticised by Maria Miller MP as being “not coordinated” and that its lack of any plan to ensure that age discrimination legislation is implemented and enforced was a “significant omission”.

The Committee suggested that the Government revise the FWL strategy so that its policy proposals are better targeted on older workers and more closely tied in to other significant policy areas such as the Industrial Strategy. The Industrial Strategy recognises the ageing population as being one of the “grand challenges” facing the UK economy today. The Committee said that FWL should be updated to determine which areas are best led by Government and which are best led by employers.

The Committee also examined  age diversity and “good” work in the context of the Taylor Review of modern working practices, and considered whether the Government’s current approach adequately addresses the needs of minority groups within the older workforce.

The Committee’s employment law recommendations

The Committee made a number of recommendations and policy proposals that it believes will reduce age discrimination in the workplace and increase the number of older workers in employment.

The Equality and Human Rights Commission

The Committee heard evidence from the Equality and Human Rights Commission (EHRC) that it was “concerned” about the low numbers of age discrimination claims being brought to it. The Committee recommended that the EHRC develop a clear plan to tackle age discrimination in employment. Specifically, the Committee said that the EHRC’s plan should:

• take action on discrimination in the recruitment industry and recruitment by employers more generally, with an aim of identifying the sectors with the worst record;
• form 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 EHRC; and
• 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.

Dual or combined discrimination

The Committee referred to s.14 of the Equality Act 2010. This section deals with ”dual” or “combined discrimination” and was written into the law to address issues faced by those possessing multiple protected characteristics. For example, a woman over 50 might experience bias because of the fact that she is both older and a woman.

However, this section of the Equality Act was never brought into force – the coalition Government decided not to do so as part of its review of “red tape”. According to the Government’s “red tape challenge” website, “current legislation already provides sufficient protection for individuals, so bringing this power into effect would duplicate the burden to businesses unnecessarily”.

Because of this, a woman over 50 would have to show that she was discriminated because of either sex or age (although she would not have to show that either was the sole, or even principal, reason for discrimination). She could not claim that it was the special combination of being an older woman that led to the discrimination.

Since s.14 was not brought into force, there are no cases discussing the intersection of age with other protected characteristics, so no statistics showing the extent to which it might be an issue. Dee Masters, a barrister at Cloisters, gave evidence to the Committee that bringing combined discrimination into force would encourage people to bring “the true case” and to “test the real prejudice”, rather than try to falsely split a case into separate claims of age discrimination and sex discrimination.

Acknowledging that older people are not a “homogenous group”, the Committee stopped short of calling for implementation of s.14 but instead makes the recommendation that the Government commission conducts research into the extent of problems faced by minority older groups.

Age reporting

There is a trend in employment law towards transparency being used as a method of compliance. We see it in the “name and shame” regime for National Minimum Wage contraventions, the proposed CEO pay ratio reporting and (of course) in gender pay gap reporting.

A recommendation by the Committee is along a similar line. It recommends 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. The Committee disagreed with evidence from Mark Holmes (Deputy Director of the Labour Market Directorate at the Department for Business, Energy and Industrial Strategy) and Alok Sharma MP (Minister of State for Employment at Department of Work and Pensions), both of whom preferred a voluntary approach rather than mandatory regulations.

According to the Committee, mandatory data transparency can encourage open discussions about age in the workplace and help employers understand whether changes to policy and practice are having the desired effect.

This can only be the case where the data that is reported is accurate, reliable and meaningful. With gender pay gap reporting, this is not always the case: research suggests 1 in 6 gender pay gap figures may be inaccurate. However, if an “age demographic reporting” regime is confined to simply the age profile of a workforce, and is shown against averages for the same industry or for the UK as a whole to provide some context to the figures, then the potential for misunderstanding would be limited.

Recruitment

The evidence heard by the committee was that age bias and illegal discrimination is a significant problem in the UK, but particularly when it comes to recruitment. The Committee said that, although blame cannot be laid solely at their feet, the failure of those in the recruitment industry to take “robust action” impacts upon on older people’s ability to find work.

The Committee heard evidence of some rogue employers specifying that candidates should be “young”. But what was more common was to see job adverts with words like “energy”, “enthusiasm” or “dynamic”, meaning that older people’s CVs “just get sifted out”.

The EHRC gave evidence that it had heard of job adverts asking for a “sparky office manager”, “dynamic staff” and “enthusiastic graduates”. This was not necessarily deliberate age bias.