Describe about age discrimination in united kingdom.
The problem of age discrimination is very common globally. Age discrimination primarily refers to discrimination of an individual or a group based on their age. The said problem of age discrimination is an on-going process, which has affected the senior citizens in the society since a very long period[1]. The said problem is very similar too and is often being compared to racism and sexism, which is considered equally serious and extreme in its nature. Any person having prejudicial attitude or behaviour towards an elderly person or a senior citizen is considered to be involved in the offence of age discrimination. Age discrimination is having a negative outlook towards older people and it is an evil that exists in the society, which kills the progress of the society. Usually older employees and older members of the society are forced to leave their house and employment as they are considered a burden and ineffective. This outlook of the society against senior citizens has prevented many talented older citizens of the society to come forward and prove their talent and potential[2]. However, with proper and effective legislation the issue of age-discrimination can be overcome. A well-drafter law against age discrimination can help protect the interest of the senior citizens in the society and earn them the respect, which they deserve. Many countries in the world like United States of America and Australia have adopted in its legislation, various provisions to protect the senior citizens of their country from ageism. However, even after all the legislations it is not evident that the said laws have changed or shifted the attitude of the people in the society towards the older lot. The age discrimination problem prevails in United Kingdom as well. The law in United Kingdom has made many acts, which safeguard the interest of the senior citizens. These most important Acts, which prevent age discrimination, are the Equality Act 2010 and the Disability Discrimination Act 2005[3].
The age discrimination law was introduced in United Kingdom in 2006. The primary sector in which age-discrimination is evident and is a serious concern is in the commercial employment sector[4]. Many a times, older employees irrespectively of their prolong years of experience are discriminated due to their age[5]. Many a times, employers do not promote older employees even though they are well deserved. Even during recruitment, an employer prefers a youthful employee than an older employer[6]. However, to solve this major issue of age discrimination the legislation in United Kingdom came up with a law called Equality Act 2010. Treating every individual fairly and without a bias, irrespective of his or her age was the primary principle of this Act. The Equality Act prohibits discrimination of any individual in United Kingdom on bases of his age, sex, race, sexual orientation, religion or personal belief, gender reassignment, pregnancy or marriage[7]. It is the duty of every employer to treat an individual seeking for employment in his company or an employee working in his company without any above-mentioned discrimination. Discrimination is termed as an event in which an individual is treated unfairly or is put in a disadvantage position compared to others.
However, discrimination based on age is the most common form of discrimination in the society especially at the workplace. The main objective of this Act is to prevent individuals from being treated in a negative way based on age. Age discrimination can be categorized into two parts. The first part is direct discrimination. Direct discrimination takes place when an individual or an employee is treated less favourably due to his age[8]. For example, an individual is not selected for a particular job because he is above the age of 50 years. Direct Discrimination is prohibited under Section 13 of the Equality Act 2010 in United Kingdom. The second part is indirect discrimination, which occurs when an policy applies equally to everyone but is of a significant disadvantage to an individual due to his age[9]. For example, when a shop allows payment of instalments only to people who are working is a disadvantage to senior citizens. The Quality Act in United Kingdom also has an exception against discrimination against age. This means that in some circumstances age discrimination is allowed. Quality Act allows discrimination when it can be ‘objectively justified’. This is a safeguard for every employer where he needs to justify with good reasons why has he discrimination against certain group of employees[10]. This exception is a protection provided to the employees from maliciously suits, which can be filed when older employees are fired for genuine reasons, which are not related to age discrimination. For example, an employer fired an old employee due to gross negligence in work. In such a case, the employee is protected by stating gross negligence a good reason for the termination of the older employee and justify that the said termination was not due to age discrimination[11]. Equality Act in United Kingdom also protects from harassment, which is based on age. Harassment is when an individual is subject to unwanted attitude or behaviour, which is humiliating and degrading for the person who is at the receiving end of such behaviour. Section 26 of the Equality Act 2010 in United Kingdom describes Harassment[12]. Under the Act, harassment takes place when an individual’s conduct towards another person who is older in this case is such that the older person feels that his dignity is violated or a conduct, which humiliates the older person being offensive in nature. This can included when an individual is humiliated with age-related remarks. Equality Act also protects against victimisation. Victimisation occurs when an individual’s complaint is not giving due-regards due to their age. Section 27 under the Equality Act 2010 defines Victimization. It refers to making the person suffer further, who takes the effort to come forwards and complain about any event or occurrence of discrimination[13].
Disability and Employment in the Equality Act 2010 critically discusses employment-related changes made by the Equality Act 2010 from a disability perspective. The employment rate for disabled people of working age in the UK is 45%, whereas those without a disability it is 77%.[3]:16 This is despite of The Equality Act 2010 requiring employers to make reasonable adjustments for a disabled person so they are not at a ‘substantial disadvantage. In A v Secretary of State, the Court of Appeal ruled that the Secretary of State for Work and Pensions acted unlawfully by failing to exempt victims of domestic violence living in safe-houses from the spare room subsidy. The court found that the impact of the spare room subsidy on those housed under Sanctuary Schemes is discriminatory and is unjustified
However, even after the introduction of Equality Act, the discrimination based on age in evident in United Kingdom. This means that the Equality Act, even after being a well-drafted and healthy legislation to protect the rights of the senior citizens in United Kingdom has failed to prevent age discrimination. The Equality Act prevents age discrimination against older groups in United Kingdom, however its evident that it lacks certain important protections which need immediate incorporation in the form of amendments. The retirement age in United Kingdom should be abolished and an employer should not be terminated when he reaches that age if the aged employee is in good mental and physical health to work. This is help the older employees of the company to protect themselves when employer of companies create an internal code of conduct which states that retirement age of his employees is 55 years[14]. This internal policy is a violation of the Equality Act in United Kingdom. The Act therefore needs to make a provision to either abolish companies from setting internal retirement age. The Equality Act can include a provision which introduces a retirement age when is valid for all companies working in United Kingdom and which is reasonable enough like 75 years after which a person himself desires not to work. In the famous case law Seldon v Clarkson Wright & Jakes, a partner in a firm claimed against being automatically retired at the age of 65 without his wish. He was asked to stay but was offered a very good monetary amount to retire[15]. The partner claim that the said action to be an age-discrimination and a violation of Equality Act. The Court rejected the said claim however, the Court send the case back to tribunal to decide whether retirement at the age of 65 was legitimate.
Another method by which the legislation can make the Quality Act more efficient is by introducing a provision, which requires a performance report from an employer when he terminates an older employer based on inefficiency. Many a times employer fire older employees stating that they employee committed some gross negligence or is in general a poor performer at work; however the real motive behind the said termination is the age of the employee. The Act needs to makes essential safeguards to protect the older employee against such discriminations, which do not seek age-discrimination directly. The Equality Act needs to introduce amendments that require an employer to provide performance records and justify his action and termination when an older employee is terminated for inefficiency or negligence[16]. The exception of age-discrimination, which is ‘objectively justified’ action, is not sufficient to protect older employers. The said exception needs to be combined with an performance record or a justifying and proof of negligence and poor performance in case of older employees being terminated for the said reason. In Moorthy v HMRC, the Upper Tribunal upheld the findings of the Lower Tribunal that compensation awards for injury to feelings in discrimination claims that relate to the termination of employment are taxable. This decision has clarified the law as prior to this there were conflicting case authorities on the taxable treatment of compensation awards.
Many a times, employers prefer recruiting employees who are younger and ignore the candidates of an older age. This very common age-discrimination is evident in majority of the work places in United Kingdom. It is very a common event to notice job advertisements, which state that young candidates will be preferred or young candidates only can apply. This is a gross discrimination and the outlook at older people is not capable or talented enough or lack the required energy to work in the same manner like that of a younger individual is very biased[17]. The Equality Act needs to introduce a provision, which makes young requirement job advertisements a complete ban and prohibit the consideration of only youthful groups for job recruitments. The Equality Act needs to make it the duty of every employer to equally without ant biased based on age, to consider every employee and select the candidate best suited for the job irrespective of his age. In an unrecorded case law in United Kingdom, a police officer aged 31 who resigned from his duty was not re-hired when he desired the same as the policing recruitment policy stated that the minimum age of hiring candidate is 30 years old[18]. He filed a case stating that the said policy was discriminatory on the basis of age and was against the Equality Act 2010 in United Kingdom. The Court accepted his claim and ruled in his favour stating that the said policing policy of recruitment was discriminatory and against the Equality Act[19]. The said problem also extends to graduate recruitment, which are preferred due to which the older candidates suffer. Every employer prefers fresh graduate who are appointed directly from college campus, this is a major disadvantage for the older candidates who seek for jobs because these fresh graduate candidates fill the major vacancies. However, we cannot deny the need and preference to hire young people, but the Equality Act needs to introduce provisions, which make it a duty of every employer to have a certain number of skilled, talented older employees working in the organisation. It cannot be denied that the experience, which the older employees have, is a big strength, which can help any organisation. The said law can also make it society get rid of the stereotype it has against older groups and believe that the older groups are equally talented and have great skilled potential. This can also help the older groups to gain more respect and appreciation in the society[20].
In a company, the benefits provided to all employees need to be equal. No employee in a company should be restricted from getting a promotion based solely on his age. Service benefits and promotions should strictly be based on performance and younger employees should be prohibited from receiving additional benefits, which can also include a company policy, which indirectly favours the younger employees[21]. For example, a company policy where travelling for long hours will provide additional benefits are indirect age based discrimination. The Equality Act needs to makes provisions, which disallow indirect discrimination, based on age that result from internal company policies, benefits and promotion appraisals schemes. The Act needs too safeguard the interests of the older employees by making rules that disallow any internal company policy, which is age-discriminatory in nature[22].
The Act also needs to formulate an ‘enforcement body’ that can review the working of every employer in the company for complying with rules set in the Equality Act[23]. This ‘enforcement agency’ needs to be given appropriate powers to punish the wrongdoers and protect the older section of the society relating to their work place age based discrimination. This agency should make a timely report and have records of all companies that employ older groups and annually make report with further suggestions and recommendations, which can help to safeguard and protect better interests of the older groups in society and eliminate discrimination based on ageism from its root source within the society[24].
It is evident that anti-discrimination laws are a recent development. Initially the laws related to discrimination were incorporated in multiple Acts, however, in the recent times there were all collectively formulated under the Equality Act 2010. The United Kingdom has also become a part of Social Chapter of the European Union therefore; it follows the Directives, which is followed by every European country in the European Union. The three main directives, which the said countries follow, are Equality in Treatment, Racial Equality and Directives that create an environment, which is equal to all in relation to career and occupation. The Equality Act, after its introduction was a significant anti-discrimination law in United Kingdom, which had two major aims. It first aim was that it simplified and united all the rules relating to discrimination and secondly its introduction marked strengthening the equality in society in general. However after all these years after its introduction, it is evident that the Equality Act has successfully only achieved a lot to fulfil the needs to its first aim. The Equality Act has collectively collaborated nearly 100 different laws to unite them all to form the Equality Act 2010 as a complete anti-discrimination law available in United Kingdom[25].
However, when it comes to its second aim, its success has been limited. Even after the act has introduced a series of new rules and regulations like gender pay reporting, positive action, combined discrimination, etc. It is evident that the measures are not enough to satisfy the needs of the older groups of the society who are still discriminated and suffer great hardship due to their old age. This makes it clear that the Equality Act has not been as effective to protect and promote the interest of the older groups of the society as it was anticipated to. Chapter 3 of the Equality Act 2010 talks about gender pay reporting. The Government in United Kingdom has confirmed it is not compulsory for the private sector companies to report on gender pay until the month of April 2013, only when voluntarily reporting as lacked to progress sufficiently[26]. The impact of this provision in the Equality Act has been and will be minimal as they only affect a handful number of employers or companies. The provisions of positive action while recruiting candidates and giving promotions’ to deserving employees is a matter, which is connected with a number of other related factors which make it impossible for a employer to rely on the factors. Combined discrimination is also not been made unlawful by the United Kingdom Government. Dual or combined discrimination is mentioned in the Section 14 of the Quality Act in United Kingdom. Combined discrimination means when an individual is discriminated against when he suffers from one or more of the characteristics that are protected under the Equality Act like age, sex or sexual orientation. Te Government in United Kingdom has made it clear that it is not going to make discrimination which is combined with two protected characterises as unlawful. For example, Tina is a black woman who works in a call centre. She was 45 years old. She was not granted promotion on the basis that her promotion would make her interact with third party and her boss considered that black woman are not good with jobs where they have to be in contact with outside parties. This is a clear example of gross discrimination, it same being a dual discrimination based on race, sex and age[27].
Another important drawback in which is evident in the Equality Act 2010 is that the government lacked to make any provisions for spreading awareness about the Act and take actions to create awareness among the older groups of the society about their rights under the said Act. Even after all these years of introduction, the Act lacks a good awareness programme which will makes a wider number of people aware about the different provisions of the Equality Act and whether they fail under any of the protected characteristics in it and the rights of many individuals who fall under the blanket of the said Act. There is no doubt about the fact that the Equality Act is a well-drafted law however, it doesn’t not change the situation that the procedures and the understanding of the same will be difficult for a layman especially when the laymen whose rights the Equality Act caters to are disabled or aged. The procedure to complain and the other related ways of seek remedy under the Act stay complicated and complex[28]. Firstly, many of the aged employees are unaware of their rights under the Equality Act, so the first reform the government in United Kingdom needs to makes is to initiate an awareness programme by various media coverage, which will create good awareness about the rights and the ways the rights can be claimed by the older employees who are discriminated against their age. Secondly, the procedure to file for a complaint against an employer who has discriminated against an older employee on basis of his age should be simplified. It is important to note here that, the employers are also in a better position to know about their various rights and handle all the legal matter due to the power they posses as a result of their monetary and other resources. It is very common that the employers use their dominant position to influence the employee to take back his complaint and settle the matter for much cheaper than they court would award. Therefore, the Act needs to makes provisions for safeguarding the employees from the discriminating behaviour of the employer, which is further extended to exploit them in case they create an issue about their equality rights. In this case, even then, the older employee who has experienced gross discrimination is aware of his rights under the Equality Act, he is asked or influenced to settle the matter by his employer who is at a better position than the older employee due to the availability or resources. Therefore, the existence of a good law makes no sense when it is not helping the group of people who its was created to protect. The most significant problem with the Equality Act is that it lacks any provisions to put the employer and the older employee who is discriminated at a equal footing by creating easier and favourable conditions and procedures for the older employees to adopt. This makes the Equality Act 2010 formulated in United Kingdom ineffective in curbing ageism or age-discrimination[29].
The most efficient way, the United Kingdom Government can deal with the above-mentioned issue under the Equality Act 2010 is by making adequate provisions to provide legal aid and specialist advice to older employees who feel that they are discriminated against at their workplace based on their age. Discrimination can be in any form, it can be a humiliating conduct by the employer or other younger employees or it can include a situation in which the employee feels he is not been given promotion due to his age. The Equality Act could possibly be more effective in achieving its second aim, which was mentioned above if the Act incorporates few amendments, which are favourable for the older employers like simplified procedures, legal advice, legal aid and specialist advice. These amendments can help the older employees know the law and the reasons which establish age-discrimination and the various remedies available to the older employer along with the method to avail the remedy and the procedure to do the same.
Another amendment which will be favourable to make the Equality Act more effective will be that it should include a provision which has association with certain Non-Governmental Organisation (NGO) who work for free to protect the interest of the weaker society. Many a times, an older employee will be more comfortable in approaching a NGO than to visit a compliance officer to file for a complaint against his current employee. Therefore, the Act requires a provision in which NGO’s can refer cases directly to the Court for the same being heard by the Court. Therefore, a provision which allows a association of an NGO for collection and filtering complains can be an improvement in the current Equality Act. The NGO can also be used to help the Government create awareness about the said Act, the rights under it, the procedures and the remedy available to the person who suffers age-discrimination[30].
Ageism or age-discrimination is the most common at workplace in United Kingdom. Therefore, the Equality Act 2010 formed in United Kingdom has helped the older employees to some extend however; the said Act fails to provide a complete remedy to the issue. United Kingdom has certain other important discrimination Act too which are general in nature but protect the older sections of the society. These Acts are the Disability Discrimination Act 2005 and the Sex Discrimination Act 1975. These Acts also help to protect the interest of the older disabled people and older people who are discriminated on their sex. However, another important sector in which age-discrimination is a common scenario is the social health care sector in United Kingdom. The Department of Health in United Kingdom, took a survey to check whether the older people in United Kingdom are treated with discrimination compared to the younger lot who use social health care services and the result was shocking as the older groups seeking heath care in United Kingdom were treated less favourably by 48%. The said survey proved to be a warning for the Government to amend its anti-discrimination laws. The result of this survey gave birth to the Equality Bill, which later after being ratified was formed as the Equality Act 2010 in United Kingdom[31].
Therefore, even after having a significant and a well-drafted law on protecting the older groups of society from systematic ageism, the Equality Act has failed to achieve the ultimate goal of eliminating or even rapidly elimination ageism from the societies in United Kingdom. Even after the passage of six years from the time the Equality Act was incorporated and came into action, the reported cases of age-discrimination are almost the same as was six years before. The typical mindset of the society that the older groups in the society are weak and incapable is a deep-rooted concept, which is as old as racism. It is almost impossible for the Government to change the mindset of the society with a wee-drafted Act, however, the Government needs to make a few reforms and amendments to protect, promote and make the older group of people feel more secure to report the events of age-discrimination, which they face.
The employers who discriminate employees on basis of age need to realize that the said age-discrimination is detrimental to the financial and social growth of the older employee. The Equality Act needs to come up with strict punishments or monetary penalties in an event where gross age-discrimination is repetitively committed by a company or an employer. Strict punishments or monetary penalties can help in reducing the age-discrimination issue when the employers will fear the law. Therefore, thought it is difficult to solve the issue of age-discrimination, the goal is not unachievable and a few reforms can make the discrimination laws in United Kingdom more effective in protecting the older groups and curbing the systematic ageism in society[32].
Reference List
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Bagenstos, S.R., 2013. Employment Law and Social Equality. Michigan Law Review, 112(2), pp.13-002.
Barnes, M.L. and Chemerinsky, E., 2011. The Once and Future Equal Protection Doctrine?. Connecticut Law Review, 43(4), pp.1059-1088.
Bingham, T., 2011. The rule of law. Penguin UK.
Brammer, A., 2010. Social work law. Pearson Education.
Britain, G., 2010. Equality act 2010. Editions de l’Atelier.
Chalmers, D., Davies, G. and Monti, G., 2010. European Union law: cases and materials. Cambridge university press.
Cooke, L.P., 2010. The politics of housework. Dividing the domestic: Men, women, and household work in cross-national perspective, pp.59-78.
Craig, P. and De Búrca, G., 2011. EU law: text, cases, and materials. Oxford University Press.
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[1] England, P., 2010. The gender revolution uneven and stalled. Gender & Society, 24(2), pp.149-166.
[2] Chalmers, D., Davies, G. and Monti, G., 2010. European Union law: cases and materials. Cambridge university press.
[3] Long, L.A., Roche, J. and Stringer, D. eds., 2010. The law and social work: contemporary issues for practice. Palgrave Macmillan.
[4] Einarsen, S., Hoel, H., Zapf, D. and Cooper, C. eds., 2010. Bullying and harassment in the workplace: Developments in theory, research, and practice. Crc Press.
[5] Craig, P. and De Búrca, G., 2011. EU law: text, cases, and materials. Oxford University Press.
[6] Fredman, S., 2011. Discrimination law. Oxford University Press on Demand.
[7] Wolfson, B., Palumbo, C., Lindgren, J.R. and Taub, N., 2010. The law of sex discrimination. Cengage Learning.
[8] Brammer, A., 2010. Social work law. Pearson Education.
[9] Rehman, J., 2010. International human rights law. Pearson education.
[10] Ellis, E. and Watson, P., 2012. EU anti-discrimination law. OUP Oxford.
[11] Horspool, M. and Humphreys, M., 2012. European Union Law. Oxford University Press.
[12] Hart, H.L.A., 2012. The concept of law. OUP Oxford.
[13] Farrington, D. and Palfreyman, D. eds., 2012. The law of higher education. OUP Oxford.
[14] Ronalds, C. and Raper, E., 2012. Discrimination law and practice. Federation Press.
[15] Vierdag, E.W., 2012. The concept of discrimination in international law: with special reference to human rights. Springer Science & Business Media.
[16] Walter, B. and Hickman, M.J., 1997. Discrimination and the Irish community in Britain. Commission for Racial Equality.
[17] Modood, T., 2013. Multiculturalism. John Wiley & Sons, Ltd.
[18] Joly, Y., Feze, I.N. and Simard, J., 2013. Genetic discrimination and life insurance: a systematic review of the evidence. BMC medicine, 11(1), p.1
[19] Bingham, T., 2011. The rule of law. Penguin UK.
[20] Act, E., 2010. Chapter 15. London, Stationery Office Ltd.
[21] Trigg, R., 2012. Equality, freedom, and religion. Oxford University Press.
[22] Bagenstos, S.R., 2013. Employment Law and Social Equality. Michigan Law Review, 112(2), pp.13-002.
[23] Barnes, M.L. and Chemerinsky, E., 2011. The Once and Future Equal Protection Doctrine?. Connecticut Law Review, 43(4), pp.1059-1088.
[24] Siegel, R.B., 2011. From colorblindness to antibalkanization: An emerging ground of decision in race equality cases. The Yale Law Journal, pp.1278-1366.
[25] Underkuffler, L., 2011. Odious discrimination and the religious exemption question. Cardozo Law Review, 32(5).
[26] Epperson, L., 2011. Equality Dissonance: Jurisprudential Limitations and Legislative Opportunities. Stan. JCR & CL, 7, p.213.
[27] Oliver, M. and Barnes, C., 2010. Disability studies, disabled people and the struggle for inclusion. British Journal of Sociology of Education, 31(5), pp.547-560.
[28] Long, L.A., Roche, J. and Stringer, D. eds., 2010. The law and social work: contemporary issues for practice. Palgrave Macmillan
[29] Fredman, S., 2011. Discrimination law. Oxford University Press on Demand.
[30] Britain, G., 2010. Equality act 2010. Editions de l’Atelier.
[31] Wolfson, B., Palumbo, C., Lindgren, J.R. and Taub, N., 2010. The law of sex discrimination. Cengage Learning.
[32] Cooke, L.P., 2010. The politics of housework. Dividing the domestic: Men, women, and household work in cross-national perspective, pp.59-78.
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