For media - FAQs

The answers provided in these FAQs do not constitute 'legal guidance' nor are they a statement of Government views.

What has happened to the ‘Heyday’ Challenge?

Heyday, which is an offshoot of Age Concern England, lodged a Judicial Review challenging the UK Government’s interpretation of the original EU Directive – particularly in respect to the introduction of the National Default Retirement Age and the impact it has on the working opportunities available to those close to state pension age.

The case came before the High Court in London in December 2006 but it was immediately referred to the European Court of Justice. It seems unlikely the case will be heard before Autumn 2008.

How many age discrimination claims have been filed since the Regulations came into effect last year?

Fewer than many lawyers expected and many employers feared. According to the Employment Tribunal Service, 972 cases were filed with Employment Tribunals between October last year and June 2007.

Where can I get hold of further information and case studies?

For further information and case studies contact TAEN - The Age and Employment Network. (Tel: 020 7843 1590; e-mail: info@taen.org.uk) - or one of the other members of the Age and Advice Network.

What is the history behind the Regulations?

In the lead up to the 1997 General Election, the new Labour party (which was then in opposition) had said it would introduce legislation to combat age discrimination. Once it was elected however, it bowed to pressure from employers to adopt a voluntarist approach instead and introduced a voluntary Code of Practice on Age Diversity as part of its Age Positive campaign.

In 2000 the EU passed the Equal Treatment Directive 2000/78/EC which established a general framework for equal treatment in employment and occupation. The effect of the Directive was to introduce 3 new ‘strands’ of equality legislation (covering age, sexual orientation, religion or belief) to join the 3 strands which already existed in the UK (gender, ethnicity and disability).

Legislation transposing the Directive into the law of all EU member states was supposed to be implemented by 1st December 2003. But in the case of ‘age,’ the UK Government applied for a three year delay (derogation) which was granted. So although the UK Regulations covering SORB (sexual orientation, religion and belief) were introduced on 1st December 2003, the Employment Equality (Age) Regulations 2006 came into force on 1st October 2006.

How much does age discrimination cost the UK?

There are differing estimates on how much age discrimination in employment costs the UK economy.
In 2000, the Government estimated the cost to be £16 billion a year in lost GDP and £5 billion a year in welfare payments and lost taxes. But the Employers Forum on Age (EFA) a couple of years later estimated that the loss in terms of GDP was almost double (£31 billion) although they agreed with the Government’s estimate of £5 billion in welfare and lost taxes.

More recent estimates from other researchers have tended towards the EFA’s figure.

Why do the UK’s Age Discrimination Regulations cover younger workers as well?

Firstly, because younger workers also encounter age discrimination. (Indeed, younger workers perceive they encounter age discrimination to a greater extent than do older workers). Whilst older job applicants are often told they are ‘over qualified’ for the job, younger applicants and workers are often wrongly denied opportunities on the basis that they are too young and/or don’t have enough experience.

Secondly, because the EU Directive, on which the UK’s Regulations are based, covers younger as well as older workers.

The decisions to maintain age based criteria for the National Minimum Wage and for Statutory Redundancy Pay both directly discriminate against younger workers but are permitted under the ‘public policy’ exemption in the Directive according to the Government.

What is the ‘public policy’ exemption?

Under Article 6. 1a of the EU Equal Treatment Directive 2000 :-
“…Member States may provide that differences of treatment on the grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy…, and if the means of achieving the aim are appropriate and necessary.”
As mentioned above, the Government is using this article to justify the exemptions it has made in respect of the National Minimum Wage, Statutory Redundancy Pay, the various New Deals, the exemptions around occupational pension schemes, etc…. but also for the introduction of the new National Default Retirement Age of 65.

Who is, and isn’t covered by the Regulations?

The Regulations cover anyone old enough to legally undertake paid employment - with no upper age limit. They apply to direct employees; self-employed and contract workers; temporary, fixed term and agency workers; Office Holders; Partners; job applicants and people undertaking or applying for work-related training.
Unpaid volunteers and members of the armed forces are not covered.

Why do older jobseekers find it difficult to get jobs?

The National Audit Office in its Welfare to Work: Tackling the Barriers to Older Workers report published in September 2004 listed the following age-related barriers :-
Employer attitudes based on myths & stereotypes
Health conditions or Disability
Lack of qualifications / Work Experience
Low basic skills
Jobseeker attitudes / Lack of confidence
Caring responsibilities
Financial

How many people want to work beyond state pension age? And how many people are currently doing so?

The number of people who want the opportunity to go on working up to, and beyond, state pension age (SPA) is steadily increasing - as are the numbers who are actually doing so.
According to a recent survey* 6 out of 10 adults aged 50-69 want to work on past state pension age. And there are currently more than 1.2 million people over SPA who are in paid employment (an increase of % (over xxx) in the past 12 months). Two thirds of those working beyond SPA are women.
* Conducted with 1,800 50-69 year olds in the Spring of 2006 on behalf of Heyday/Age Concern

If the Government wants everyone to work longer why has it brought in the National Default Retirement Age?

The Government got cold feet about scrapping fixed retirement ages after it had come under sustained pressure from a number of employers’ organisations (including the CBI, EEF and British Chambers of Commerce) not to do so. These organisations claimed that fixed retirement ages were essential for workforce planning purposes even though research shows that the majority of employees ‘retire’ (or are retired) before they reach those ages.
Introducing the National Default Retirement Age of 65 was seen as a pragmatic compromise and the Government is committed to reviewing it in 2011. The working assumption of most of employers’ groups is that the decision to scrap it will be taken then, although it may be several more years after that before it happens.

Why do the Regulations only apply to employment and training?

Firstly, because the EU Directive only applies to employment and training. Secondly because the Government also made the decision the Regulations should not cover ‘goods, facilities and services’ as well. However, there is currently a consultation taking place following the publication of the Discrimination Law Review’s Green Paper that is seeking views on such an extension.

Do public sector employers have a duty to promote age diversity?

No, not under the present Age Regulations. The present consultation following the publication of Discrimination Law Review’s Green Paper is seeking views on whether such a duty for age should be included in a future Single Equality Bill. Although the Government made a manifesto commitment to bring forward such a Bill in this Parliament, it seems unlikely to happen until 2009 at the earliest.

Which Equality Commission will oversee the Age Regulations?

The new Commission on Equality and Human Rights (CEHR) will be responsible when it comes into being in October 2007.