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The Government code of practice on age discrimination doesn’t go far enough. 

On Wednesday, the Government announced that it intended to introduce legislation to prohibit age discrimination in employment. It has set up an Age Advisory Group, as a precursor to nationwide consultation, which will culminate in legislation within the next six years.

The scope of the review is wide and will include the possibility of abolishing mandatory retirement ages within companies.

The AAG is likely to have regard to the very recent Code of Practice on Ageing in Employment, published in January 2001 by Eurolink Age, an EC-backed body. It contains guidelines for employers who wish to avoid discriminating on grounds of age, but which regrettably has not been publicised widely in England. Age discrimination legislation will be a culture shock for the UK.

The Labour Government, while in opposition, pledged to “introduce comprehensive legislation to make age discrimination in employment illegal” (Hansard, February 9, 1996). Two years later it declined to repeat this commitment (Hansard, February 6, 1998). On June 16, 1999, after a lengthy consultation process, the Government published its Code of Practice on Age Diversity in Emp- loyment.

This sets out laudable moral principles exhorting employers not to discriminate on grounds of age in various categories, such as recruitment and promotion. According to a Department for Education and Employment press release on November 29 last year 64,000 copies of the code have been distributed. Sadly, the code is voluntary only and appears to have had little effect. A recent survey by the Employers’ Forum on Age revealed that three in ten employers had never heard of the code, less than one in ten inten- ded to make any changes to recruiting and training, and 68 per cent said that a voluntary code will make no difference.

A report in The Times (June 15, 2000), said the Prime Minister’s advisory unit on older people recommended that the code be replaced with a statutory code. A 1997 survey showed that one in 10 job adverts in The Sunday Times contained direct reference to age. Advertisements today contain fewer direct references but frequently contain language targeted at younger candidates, such as “we are looking for a person willing to learn, to join our energetic and dynamic team”.

A 1999 survey by the Institute of Management showed that 55 per cent of managers used age as a criterion for recruitment. While justifications do exist for age discrimination, in the same way they do for sex and race discrimination (for example, authenticity in a theatre production — you would not expect to see Othello being played by a 95-year-old Caucasian female), employers often act against their own interests when discriminating on grounds of age. For example, during the millennium bug crisis many computer companies rehired the original programmers of the Seventies and Eighties because the knowledge these older workers possessed had been lost to the IT industry. B&Q actively engages in positive age discrimination and reports lower rates of absenteeism and higher worker satisfaction than in a younger workforce.

Some successful age discrimination arguments have been won in the courts. A number of employment tribunals have produced differing decisions on whether the upper qualifying age for unfair dismissal is contrary to the principle of equal pay for men and women. The argument is that a prohibition on claiming unfair dismissal for those over 65 affects a disproportionate number of men — there being more men than women over 65 in the workplace. The employment appeal tribunal was due to hear the first case on this point on December 11, 2000, although the case (which is backed by the Equal Opportunities Commission) may well go further.

Moreover, the House of Lords has recently held that age discrimination may be a breach of contract, if there is a clear equal opportunities policy containing a promise not to discriminate on grounds of age which has been incorporated into the contract. In that case, a prison officer was not permitted to rely on the contractual equal opportunities policy because it was a waffly mission statement and did not extend, on a proper construction, to the Prison Service retirement age.

Despite reluctance to legislate, Parliament will soon be compelled to do so. On November 27 last year the Equal Treatment Framework Directive was issued, requiring all member states to introduce legislation by December 2006 prohibiting age discrimination in employment. A number of exceptions are set out — such as retirement ages and access to social security benefits.

As with present sex, race and disability discrimination, a “genuine occupational requirement” defence can be invoked. The directive permits different treatment on grounds of age when it advances a legitimate employment policy, for example, when employees must possess certain qualifications. Although age discrimination may be with us for a few more years, legislation prohibiting it will be introduced by 2006. This will be a project to tax the political judgment of the next parliament. The author is a practising barrister at 2 Gray’s Inn Square Chambers.