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Last Updated: Thursday, 3 July, 2003, 21:02 GMT 22:02 UK
Six Forum: Age discrimination at work

Help the Aged's Tessa Harding answered your questions.

  • Read the transcript

    Your questions on the legal aspects of this legislation were answered by Hilary Larter, an employment lawyer with Beachcroft Wansbroughs.

  • Read the transcript



    The government has proposed radical plans which could see millions more people working well into their advanced years.

    In the proposals, employers would be banned from enforcing a retirement age below 70.

    Employers would also be stopped from stipulating age limits in job advertisements.

    Ministers say tackling age discrimination will create a wider pool of workers whose abilities better match the requirements of employers.

    Would you work until you are 70? How would your rights and benefits be affected?


    Tessa Harding transcript


    Manisha Tank:

    Hello and a very warm welcome to the Six Forum with me Manisha Tank. The Government plans to outlaw age discrimination at work by 2006. Employers could be prevented from forcing retirement on workers aged under 70. This will be the biggest change in employment law in a generation.

    The Government believes that age discrimination costs the economy as much as 16 billion a year. But what do the wide-ranging changes mean for you and will they affect your rights and benefits? Well here to answer your questions is Tessa Harding, who is head of policy at Help the Aged.

    Tessa, thanks for coming to the Six Forum to join us. First of all we've had an e-mail from Caroline in Manchester who says: The reason given for most companies not employing older people is that they are overqualified. How will the new rules actually change this?


    Tessa Harding:

    We're going to need to see how the new rules work out. But I think that tribunals - if a case like this was taken to a tribunal - would see over-qualified as an excuse. That what employers need to do is to look at the actual skills and capacities of each individual on an individual basis, not on the basis of their age or on any other feature indeed.


    Manisha Tank:

    You bring up an important point there, the one about tribunals and let's use that to get into what current policy actually is and what the big change is going to be. We have an e-mail from Andrew Dundas in Leeds who asks: Why do Employment Tribunals rarely take up the Age issue? What does this say about current policy?


    Tessa Harding:

    Well it's not illegal to discriminate against people on grounds of age and so it's very easy, for example, for employers to make people redundant because they need to change the structure of their workforce or whatever. There is nothing that people can do about that at present. The difference that will be made is that first of all employers will need to look at their policies and their practice and make sure that they don't discriminate on age grounds. Secondly, individuals will have employment rights. They'll be able to take cases to tribunals and challenge their employer.


    Manisha Tank:

    At the end of the day this is Britain catching up on an EU directive, bringing us into line with something that's been set in stone over there in the European Union. But interestingly just on an international comparison then, Satnam Singh has written to us from San Jose, California, he says: I work in the United States where it is illegal to ask someone their age on an application forms. However, I don't see companies in my neck of the woods hiring "mature" candidates even when they have a wealth of technical and managerial experience. Will this legislation really improve things?


    Tessa Harding:

    I think we need to go beyond the legislation and to look at employers' attitudes to older workers. Legislation is absolutely crucial because that's the bottom line - that really sets the parameters for the way employers behave. So that's absolutely essential. But this is really about tackling our attitudes to older people across the board and in the employment field in particular. It's very often assumes that older people are more likely to be ill, that they are less capable, that they are not able to learn perhaps at the same rate as younger people.

    None of those things hold true when you look at the research or you look at the actual evidence. So I think we have all sorts of stereotypes and make a lot of assumptions about older people in general which we really need to re-examine and this is a very important step in that direction.


    Manisha Tank:

    Well talk more about the social aspects in just a moment. But just on a financial note, Geoff has written in from Harrogate: Surely this has nothing to do with age discrimination and everything to do with the pensions crisis?


    Tessa Harding:

    There's no doubt that we have a real set of issues around pensions. With the State retirement pension - the Government has said that that will remain at the current ages - but we all know that its value has decreased very significantly and we all know there's insecurity around both private and occupational pensions. But we have that problem anyway. I think that the opportunity to work for longer is one that many people will take and will want to take, partly in order to off-set that in insecurity.

    In fact we've found a very high proportion of people - three-quarters of all the people that were interviewed - said they would actually want to work past state pension age, particularly provided that they could either work part-time or more flexible hours. So maybe that's something employers need to look at too.


    Manisha Tank:

    Well sticking with one more on the financial aspect of this. Tim Savage has written to us from Chester: A 69 year-old person applies for a job which requires significant training at a cost to his employer. He plans to retire at 70, a year later. Will the employer be forced to employ this applicant? Is this not just a charter for litigious candidates to earn a bit of money before they retire?

    Now I can't think of many people who would like to do this. But perhaps there are some.


    Tessa Harding:

    The Government has allowed for that in the consultation paper which it has published today. It does recognise that there are some jobs and some occupations where there's a very significant period of training where it may well not make sense for employers to train somebody who is older if they don't think they are going to get very good value out of that person after the training is completed. But let's not forget that younger people leave jobs too. You may well give somebody very expensive training who will leave anyway for a different occupation or for a whole variety of other reasons. I think the critical issue is not to see age as the deciding factor.


    Manisha Tank:

    B Hopkins in Bentham asks: I work in local government and have been told I have to retire when I become 65 in October. Is there any way I can legally challenge this?


    Tessa Harding:

    The answer to that is not at present but there could be once this legislation is in place which is not unfortunately until the end of 2006.


    Manisha Tank:

    We have lots of e-mails from civil servants employed by the Government and one would assume that the Government will have to fall into line as well.


    Tessa Harding:

    Indeed, I think it absolutely has to. I don't think it can require other people to act in a certain way without doing so itself.


    Manisha Tank:

    Keith Barrat in London asks: When the bill becomes law, what will happen about employees who have signed a contract of employment which specified a retirement age of say 55 or 60 years? Will the contract still be legal and enforceable by the employer?


    Tessa Harding:

    I don't know the answer to that. I don't know whether the lawyers have even looked at it yet - whether the legislation will apply to contractual arrangements which were made prior to it coming into force. So I can't really answer that one and there are going to be lots of issues like that which will be raised during the course of the consultation and that's what the period of consultation is for - to enable people to have a really good think through what might apply before it actually comes into force.


    Manisha Tank:

    An interesting e-mail that we've had here from Justin in Lincolnshire pointing out that with this Government there's a feeling that perhaps this Government hasn't been a respecter of age and that we've seen a shortlist of female and selections from ethnic minorities moving into Government. Is the hope of Help the Aged that this sort of debate will raise that type of awareness and we'll see that there's less age discrimination elsewhere - in Government, in shortlists for jobs - in these sorts of things?


    Tessa Harding:

    Absolutely. We've been running a campaign against age discrimination for the last year and half and we've got lots of evidence from people and from research about age discrimination across the board in all sorts of aspects of life and I think we have to tackle that along with the stereotypes of older people that we carry in our heads and in our culture.


    Manisha Tank:

    Now it's quite interesting, lots of people have looked at our economy and they've thought, our economy is heading in a certain direction away from manufacturing and into service industries and what does this mean for the make up socially - which age groups work in which sectors? Tony, UK asks: What jobs do you think we'll be doing when we're 70? The manufacturing economy has been dead in this country for years. In the same way, our service economy is currently being exported to the country offering the lowest labour rates.

    This raises an interesting question that the more experience one has the older you get, the more expensive you become for an employer.


    Tessa Harding:

    Which is sometimes the case but not invariably the case. One of the interesting things that we found in a survey that NOP undertook for us was that people were really quite interested in working beyond state pension age provided they had the flexibility and maybe opportunities for part-time working. So I think people are interested both in continuing in their existing job sometimes but also in trying new opportunities and new fields of work. I don't know what opportunities are going to be available for older people but they have skills and they have abilities and talents to offer and we're wasting those at the moment.


    Manisha Tank:

    Now the younger generation is getting worried. We've had lots of e-mails and texts in on this subject. Mike in Manchester has just sent us a text and asks: The longer retirement age will make it harder for school leavers to find employment. What are your views on that?


    Tessa Harding:

    Well what's actually happening is that there are fewer and fewer young workers coming into the labour force - there's actually a deficit of younger people joining the labour market. So we're going to need older workers in order to fill that gap. The whole structure of the population is changing - we have an ageing population. So I don't think we have to worry too much. First of all they will still be needed. Secondly, the legislation will apply to younger people as well as to older people, so younger people should be protected by the same legislation.


    Manisha Tank:

    And of course it's been billed as the biggest change in a generation when it comes to employment law. Finally, I just want to talk about healthcare. What about age discrimination outside the workplace? We had an e-mail from Hattie in Dunfermaline who asks: There are upper age limits to certain NHS treatments for example. This employment issue will hopefully raise awareness and get this debate going.


    Tessa Harding:

    Yes. We would want legislation against age discrimination to be extended to all fields - not just employment but to goods and services as well and the Government is not willing to contemplate that at the moment. But what they have done interestingly in relation to healthcare is to introduce a policy to root out age discrimination in the NHS and there are people all over the country actively working out what that means and how to do it right at this moment. So I think we're moving in that direction but very, very slowly and cautiously.


    Manisha Tank:

    Tessa, thanks very much for answering all of those questions. And just to finish a comment from Helen Wild who has written in: As I managed a complete career change at the age of 52, I feel I'm not a victim of age discrimination, providing you can get an interview for a job in the first place, it's your attitude, flexibility, personality and experience that count.

    I guess that's across the board no matter what age you are isn't it?


    Tessa Harding:

    Absolutely.


    Manisha Tank:

    Thanks very much Tessa Harding of Help the Aged. That's it then you've been watching the Six Forum. Goodbye.


    Hilary Larter transcript


    Rory Cellan-Jones:

    Hello and welcome to this BBC News interactive forum with me, Rory Cellan-Jones. Radical proposals to ban age discrimination at work have been published today. Under the plans, companies will no longer be able to force employees to retire before they are 70. And employers will be stopped from advertising specifically for young people, or barring older staff from going on training courses. Can the proposals make a difference? We've received many questions from you and joining us from our Leeds studio to help answer them, is employment lawyer Hilary Larter.

    Hilary just to start off with, how radical a change is all this in terms of our conditions of work?


    Hilary Larter:

    This could be a major change in UK legislation. For the very first time we have provisions being brought in that's going to prevent ageism. So it will be an important change for employers and employees.


    Rory Cellan-Jones:

    Let's start with a group of e-mails that we've had. Ed Addis, from Cheltenham says: An admirable idea, but how could it be enforced? Employers will easily circumvent the legislation in the area of recruitment, and proof will be very difficult.

    That is a point isn't it? First of all if we look at recruitment adverts they're going to have to be worded differently. But it's going to be quite difficult to judge what's wrong with them.


    Hilary Larter:

    Exactly. The law as it stands and what the Government is proposing does allow employers in certain situations to justify discriminating on grounds of age and that is going to cover the area of recruitment. So you may well still see adverts that have an age restriction on them, for example, if they need to employ somebody because they are fit and healthy, they may want to restrict their advert. So again it is quite wide in terms of the exemptions that are going to apply under this legislation.


    Rory Cellan-Jones:

    But let's go forward to 2006 when this actually comes in - if I'm trying to employ somebody I won't be able to put age 21 to 35 as what I'm looking for and there are also with certain words that I'll have to be careful about using aren't there?


    Hilary Larter:

    You will do. You'll have to avoid using for example "young lively workforce" or "young lively employees required". I think employers are going to have to be careful about what they can and can't say in adverts from now on and also going on into their recruitment policies.


    Rory Cellan-Jones:

    An e-mail now from Peter in Maidenhead who asks: Will companies use the impending change to make older people redundant before the law comes into effect?

    So there is a danger isn't there that in the next few years that they will do that.


    Hilary Larter:

    There is a danger but employees do still have the protection under unfair dismissal if they are dismissed. If the company has their normal retirement age that may affect them but they do still have that right and there is in fact test cases on that issue in any event. So they may well still be able to bring a claim before the law comes into effect in 2006.


    Rory Cellan-Jones:

    When it does come into effect, if say somebody is 61 years old working for a major employer and their employer says it is time to go and they think it is simply because of their age, what will they be able to do?


    Hilary Larter:

    They will be able to claim in an employment tribunal that they have suffered discrimination on grounds of their age, so that's where their remedy will be.


    Rory Cellan-Jones:

    We've just had another e-mail just come in on this one from Sarah Lyon in London who asks: Do you think there's too much regulation and red tape stifling businesses? Surely employers should be able to employ whom they want as they act fairly and reasonably. This is a point the CBI has also been making - a bit worried that they'll be this explosion of cases - it will be very good business for people like you but a big added burden on small companies.


    Hilary Larter:

    Well again I think it's yes and no to that question. Yes, there may well be a burden in terms of having to understand the legislation and apply it. But there may also be a benefit to employers of actually thinking that they may well be able to continue employing people that are perfectly healthy, perfectly capable of doing the job and there's no reason for them to bring their employment to a premature end. So there may well be a benefit for them in that respect.


    Rory Cellan-Jones:

    Alan Cameron, Southampton asks: I reach retirement age this month. I am self-employed and my contract goes on for two more months with a possible option to extend for up to at least six more months. How is this going to affect me?

    Well presumably it's not going to affect him because the legislation won't be in for - how long?


    Hilary Larter:

    It doesn't have to be in until October 2006 and we're not actually going to see any draft legislation until 2004. So unfortunately he's not going to be able to rely on it at this stage.


    Rory Cellan-Jones:

    Let's be clear about retirement ages - there is no state retirement age, there's a state pension age, isn't there?


    Hilary Larter:

    That's right.


    Rory Cellan-Jones:

    But companies from now on won't be able to say our retirement is 60 full stop. Is that the case?


    Hilary Larter:

    What the Government are proposing - or they've put out for consultation - are two possible alternatives: either do away with mandatory retirement ages altogether or alternatively have a backstop age of 70. So there may well be in the legislation the age of 70 creeping in, which is interesting because actually the European directive where this legislation came from doesn't actually have that age in it. So it will be interesting to see whether that will be challenged.


    Rory Cellan-Jones:

    On this line, Kark in the UK ask: Does this mean women will work until 70 too, or will we continue the current sexist attitude of forcing men to work more years and dying earlier due to unequal health care/research?

    I suppose we should stress that this is not going to be compulsory is it? You're not going to have to work until you are 70.


    Hilary Larter:

    No, you won't have to work until 70 and equally employers can still allow you to work after 70 if in fact the Government chooses the age of 70 to be the mandatory retirement age.


    Rory Cellan-Jones:

    The whole issue of pensions - a lot of people are mixing this up with pensions - the Government are very keen to separate the two, they say this has nothing to do with the age you take your pension. Here's a question from Elaine Taylor in Newmarket who asks: obviously the idea of stamping out discrimination in the work-place is very attractive but surely this is a move by the Government to lower their pension bill?


    Hilary Larter:

    Well she's quite right, there is a Green Paper relating to pensions at the moment but it's quite clear that it's not going to affect state pension ages. So for employers, if they want to choose to increase their occupational retirement ages under their own scheme that will be a matter between the employers and their pension providers.


    Rory Cellan-Jones:

    Martin in England asks: Will I still be able to put off taking my pension as now in order to build contributions up ever higher?

    I suppose this is a question a lot of people will want to know - if I get to 60 and want to carry on working but I'm due to get my pension, what happens then?


    Hilary Larter:

    Again I think that's going to be a matter for the scheme rules and whether that's going to be allowed under those.


    Rory Cellan-Jones:

    But the Government is trying to keep the idea of retirement and the idea of getting a pension - it's actually trying to split them up, whereas they're bound together right now.


    Hilary Larter:

    That's right. I think the potential original plan was to link the two but it's been clear after receiving several objections in relation to changing the actual pension age, that that's not going happen.


    Rory Cellan-Jones:

    Now a question on the other end of the age spectrum, on youth discrimination, Linda in Birmingham says: Is there anything in this proposal to outlaw discrimination against the young? For example, I am aware that at a local university academic staff under 27 are paid significantly less than counterparts irrespective of experience or qualifications.


    Hilary Larter:

    What we mustn't forget, a lot has been concentrating on the older parts of the workforce but this legislation equally applies to those that are younger as well. So again that may be an area that's open to challenge under this legislation.


    Rory Cellan-Jones:

    Yes, when it comes to advertising for jobs, not only can you not say, "nobody over 30" but you can't say "must be an older, more mature person".


    Hilary Larter:

    Exactly. The aim is that if someone has the ability, the necessary qualifications or experience, there's no reason why they can't do the job irrespective of their age.


    Rory Cellan-Jones:

    I suppose some people will be worried that that could leave employers in a pretty tricky position. What about people like the fire brigade, the police, airlines for example? Will we be sitting in an aircraft a few years from now and our captain will come over the loudspeaker and he'll turn out to be 75 years old?


    Hilary Larter:

    Possibly but at the same token there are exceptions so employers employing certain categories of people where there may be, for example, a threat to health and safety or it's necessary for certain training that people be at least a certain age to have undertaken that training, that they can apply that exception in, for example, recruiting people of a certain age. So you not potentially going to have 18 year-olds managing air traffic control.


    Rory Cellan-Jones:

    This is what the whole row is going to be about as we go through this consultation process isn't it? Because they've got to be exemptions from this presumably and it's how those exemptions are framed.


    Hilary Larter:

    Yes. Currently they're framed very widely and I would imagine it's going to be through case law that we're actually see how they're going applied in practice.


    Rory Cellan-Jones:

    Another question coming in from B Hopkins, who asks: I work in local government and have been told I have to retire when I become 65 in October. Is there any way I can legally challenge this?

    Well obviously he can't now but when this came in presumably he would be able to challenge that.


    Hilary Larter:

    Well also he may be in a slightly different position to people that are employed in the private sector because the provisions under this legislation are coming under the European Directive and as a public sector employee he may be to bring a case to say that these laws actually apply to him now. But again he might want to be a test case on that which will be interesting.


    Rory Cellan-Jones:

    He might be able to come in early on that then.


    Hilary Larter:

    He might be able to come in early because he's a public sector worker.


    Rory Cellan-Jones:

    Just summing up on this. There could be a whole rash of test cases on this couldn't there. What we've got to remember is, like sex discrimination and race discrimination, there are large amounts of compensation possible aren't there much more than in unfair dismissal cases normally.


    Hilary Larter:

    That's right. Under those Acts there's currently unlimited compensation although the courts have provided some guidelines. But essentially the same type of compensation will apply to age discrimination.


    Rory Cellan-Jones:

    So we'll have a bit of a legal free for all in the next four of five years?


    Hilary Larter:

    Possibly but given the time delay in bringing the legislation then it gives everybody time to prepare their arguments.


    Rory Cellan-Jones:

    Thank you very much for that. I'm afraid that's all we have time for, my thanks to Hilary Larter and to you for your many questions. Goodbye.




  • SEE ALSO:
    Age discrimination to be outlawed
    02 Jul 03  |  Business
    Judge dismisses Hollywood ageism claim
    22 Jan 03  |  Entertainment
    Ageism 'common' at work
    04 Dec 02  |  Business
    Will you work until 70?
    02 Jul 03  |  Have Your Say
    Q&A: Age discrimination at work
    02 Jul 03  |  Business


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