Are Older Workers Past Their Sell‐by‐Date? A View from UK Age Discrimination Law
| Date | 01 March 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12113 |
| Author | Elaine Dewhurst |
| Published date | 01 March 2015 |
THE
MODERN LAW REVIEW
Volume 78 March 2015 No 2
Are Older Workers Past Their Sell-by-Date? A View
from UK Age Discrimination Law
Elaine Dewhurst*
This article assesses the effectiveness of United Kingdom age discrimination law in protecting
older workers from claims that they are less productive and perform more poorly than younger
workers. The article assesses employer perceptions and the incompatibility of such perceptions
with existing research and the current interpretation of age discrimination law by the CJEU and
the Supreme Court which accords with such research. The effectiveness of age discrimination law
in practice is assessed through an analysis of existing compensation reduction rules. The article
concludes that the existing rules which allow for a reduction in compensation payable where there
is a chance that the same outcome would have been reached in the absence of discrimination (the
‘chance model’) reduces the effectiveness of the existing protections. A move to a ‘certainty
model’ would be less speculative, would serve the objectives of anti-discrimination law and would
reduce concerns about compatibility with EU law.
INTRODUCTION
One of the classical stereotypes of older workers is that they may be less
productive and more expensive than younger workers. Levine, in his classical
analysis of age discrimination, argued that businesses often impose age based
practices which they consider to be ‘substantively rational as older workers are
less productive than younger workers’.1However, such assumptions about older
workers are not reflective of the true potential of older workers.2Age discrimi-
nation law in the EU,3as subsequently transposed into domestic law,4has
attempted to ameliorate the effects of age stereotyping by prohibiting both direct
and indirect discrimination on grounds of age and the interpretation of these
legal provisions by the courts also reflects a commitment to the elimination of
negative perceptions of older workers. However, such laws are only effective if
they have a deterrent effect on employers. It is argued in this article that, despite
*Senior Lecturer in Employment Law, the University of Manchester.
1 M. Levine, Age Discrimination and Mandatory Retirement Controversy (Baltimore: John Hopkins
University Press, 1988) 108.
2ibid, 108–117.
3 Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal
treatment in employment and occupation Official Journal L 303, 02/12/2000 P. 0016 – 0022.
4 Initially, the Employment Equality (Age) Regulations 2006 prohibited age discrimination in
employment, but this has now been superseded by the Equality Act 2010.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(2) MLR 189–215
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
the existence of compensatory remedies for older workers subjected to age
discrimination, employers are able to seek significant reductions to such com-
pensatory awards by claiming that there is a chance that the same result would
have been achieved even in the absence of discrimination and often rely on
stereotypical assumptions of older workers in making out such arguments. While
the existence of compensatory reduction itself is not in issue, the evidential basis
upon which it can be achieved, referred to in this article as the ‘chance model’,
will be challenged. Significant reductions in compensation undermine the deter-
rent effect of anti-discrimination provisions and provide opportunities for
employers to perpetuate negative stereotypes of older workers.
The first section of this article analyses the typical negative perceptions of
employers in relation to older workers and concludes that such perceptions are
not supported by empirical evidence relating to the productivity and perfor-
mance of older workers. The second section of the article examines the inter-
pretation of the legal provisions on age discrimination by the Court of Justice
of the European Union (CJEU) and the courts and tribunals in England and
Wales to determine whether these legal interpretations allow for the perpetua-
tion or condemnation of negative stereotypes. It is concluded that, in general,
the legal rules and their interpretation by the courts do reflect a commitment
to older worker protection. However, such legal rules will be ineffective in
combatting negative perceptions and discrimination if the remedies available
are limited. While unlimited compensation is available in discrimination cases,
the article analyses the right of an employer to seek a reduction in compen-
sation in discrimination cases where the employer can show that there is a
chance that the same outcome would have been achieved even in the absence
of discrimination and assesses the legality and impact of this rule on older
workers. A move away from the current model of determining compensation
reduction based on the chance that the same decision would have been made
in the absence of discrimination, referred to in this article as the ‘chance
model’, is advocated. In order to ensure that employers are not unduly preju-
diced by the complete removal of this model, a ‘certainty model’ is proposed
based on EU anti-discrimination law principles. It is concluded that a move to
the ‘certainty model’ would ensure a more appropriate balance between pro-
tecting employers from excessive claims and ensuring older workers are
adequately compensated for the indignity and detrimental effect of age based
discrimination.
ARE OLDER WORKERS LESS PRODUCTIVE? PERCEPTION
v REALITY
In seeking to address the question of whether UK age discrimination law
adequately protects older workers from being treated as less productive members
of society, it is important to assess in the first instance whether older workers are,
in fact, less productive or whether this is a myth. This section of the article
initially examines the mostly negative perceptions of older workers amongst
employers. In contrast, an analysis of the scientific literature on this issue reveals
Are Older Workers Past Their Sell-by-Date?
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
190 (2015) 78(2) MLR 189–215
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