Age Discrimination: Equal Treatment with Exceptions
| Author | Malcolm Sargeant |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1177/135822910500600304 |
International Journal
of
Discrimination and the Law, 2005, Vol.
6,
pp. 251-266
1358-2291/2005
$10
©
2005
A B Academic Publishers. Printed in Great Britain
AGE DISCRIMINATION: EQUAL TREATMENT WITH
EXCEPTIONS
MALCOLM SARGEANT*
Middlesex University, UK
ABSTRACT
The
likelihood
of
age discrimination in relation
to
employment increases the older
a person becomes.
The
concern
is
that,
partly as a result
of
this discrimination,
large numbers
of
older workers leave the workforce
and
become economically
inactive. This in
turn
brings increased pressures
on
the remaining members
of
the workforce
and
increased pressures
on
public finances in relation to pensions
and
healthcare.
The
Equal
Treatment
in Employment
and
Occupation Directive (2000/78/EC)
approaches this
problem
by introducing the principle
of
equal treatment in a
number
of
areas related
to
employment, including age.
The
reasons for action
on
age discrimination rests
upon
two potentially conflicting justifications.
The
first is a
human
rights one based
upon
the right
of
all persons
to
equality before
the law
and
the second
is
one concerned with implementing
EC
Employment
Guidelines
on
integrating disadvantaged groups
into
the workforce. This second
justification
is
likely
to
lead
to
a
much
more
pragmatic
approach
which in
turn
may
compromise the principle
of
equality
of
treatment. This article, uses survey
material,
to
argue
that
the potential conflict between
an
equal treatment
approach
and
the functional,
more
pragmatic,
approach
may
lead
to
a lessening
of
the
effectiveness
of
measures prohibiting age discrimination.
The
population
of
the
United
Kingdom
is
growing
and
ageing.
The
2001 census revealed
the
following
age
breakdown
(Table
1):
Table
1:
Population
of
the United Kingdom by age
All ages
Under
16
Men
16--64,
women
16--59
Men 65+, women
60+
58.8 million
11.9 million
36.1
million
10.8
million
For
the
first
time
there
are
now
more
people
over
the
age
of
60
years
than
there
are
children
under
16 years.
The
change
in
the
age
population
is
noticeable
when
compared
to
the
1951 census.
During
this 50
year
period
the
proportion
of
the
population
aged
under
16
years
has
fallen
from
24%
to
20%.
At
the
same
time
the
proportion
aged
60
years
and
over
has
increased
from
16%
to
21%.
1
252
The
average
age
of
the
population
in
the
United
Kingdom
as
a
whole
is
increasing
as
is
the
average
age
of
the
economically
active
population.
Over
the
25
year
period
between
1996
and
2021
the
proportion
of
people
over
the
age
of
44
years
will
increase
from
38%
to
46%;
the
45
to
59
age
group
will
increase
by
almost
one
quarter;
the
60
to
74
age
group
will
increase
by
over
one
third
and
the
75
years
and
over
group
will
increase
by
28%.
In
contrast
the
16
to
29
years
age
group
will fall
by
5.7%.
2
This
process
is a
Europe
wide
one,
although
the
speed
of
the
process
is
variable
(see
below).
AGE
AND
ECONOMIC
ACTIVITY
The
ageing
of
the
population
is
relevant
because
the
likelihood
of
discrimination,
on
the
grounds
of
chronological
age, increases
the
older
one
becomes.
The
Department
for
Education
and
Employment
commissioned
a
research
project
in
19963
with
two
main
aims.
The
first,
and
principal,
aim
was
to
identify
the
effect
of
age
on
economic
activity.
The
second
was
to
explore
the
characteristics
of
older
workers.
Older
workers
were
defined
as
those
aged
50
years
or
over.
The
main
conclusions
were:
(i)
Older
workers
were
less likely
to
be
in
paid
work
than
younger
age
groups.
When
they
did
work
they
were
more
likely
to
be
working
as
self
employed
or
part
time.
The
overall
self
employment
rate
is
11.6%,
but
the
self
employ-
ment
rate
for
the
50-SPA
(state
pension
age)
group
is
16.7%
and,
for
those
over
SPA,
some
24.4%.
The
figures
are
even
more
dramatic
when
one
looks
at
the
gender
differences.
Some
22.2%
of
men
between
50
and
SPA
are
self-employed
and
some
40.5%
of
those
over
SPA.
This
is likely
to
reflect
the
greater
difficulty
that
older
workers
have
in
obtaining
employed
positions.
Long
term
unemploy-
ment
also
affects
older
workers
much
more
than
other
age
groups.
(ii)
Among
white
collar
occupations
there
was
a
'sharply
increased'
likelihood
of
becoming
economically
inactive
beyond
the
ages
of
50
and
55.
Those
in
blue
collar
jobs
also
faced
higher
risks
of
unemployment
and
those
risks
became
greater
with
age.
The
total
potential
working
population
in
2003
was
36,157,000
people.
This
accounts
for
78.1%
of
the
adult
population
(16
years+).
Some
70.1%
of
the
50-SPA
age
band
were
in
employment
(6,133,000).
This
compares
to
an
overall
employment
rate
for
all
ages
of
74.9%.
Only
9%
of
those
over
SPA
were
also
continuing
to
work.
(iii)
When
older
workers
were
unemployed
and
claiming
benefit
they
tended
to
use
fewer
methods
of
job
search.
Once
people
had
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