Reflexive change? A quantitative review of the impact of the Equality Act 2010 on age equality measures in organizations
| Published date | 01 June 2016 |
| DOI | 10.1177/1358229116655650 |
| Date | 01 June 2016 |
| Subject Matter | Articles |
Article
Reflexive change?
A quantitative review
of the impact of the
age equality measures
in organizations
Alysia Blackham
Abstract
This article considers the extent to which the Equality Act 2010 (EqA) represents a
form of reflexive law, with a particular focus on provisions relating to age dis-
crimination. I argue that the EqA may better reflect a form of command and control
regulation, though it includes a number of reflexive elements. Drawing on data from
the 2011 Workplace Employment Relations Study survey, I consider the extent to
which the EqA has effected change in age-aware practices in UK organizations. I
argue that the EqA has made limited progress in promoting age-aware activities in
the United Kingdom, potentially reflecting the limitations of command and control
regulation. Thus, I propose a number of reforms that may help to strengthen the
reflexive aspects of the EqA.
Keywords
Equality, age, United Kingdom, organizational change, reflexive law
Melbourne Law School, The University of Melbourne, Australia
Corresponding author:
Alysia Blackham, Melbourne Law School, The University of Melbourne, Victoria, 3010, Australia.
Email: alysia.blackham@unimelb.edu.au
International Journalof
Discrimination and theLaw
2016, Vol. 16(2-3) 122–142
ªThe Author(s) 2016
Reprints and permission:
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DOI: 10.1177/1358229116655650
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Introduction
Population ageing is a key concern for governments across the Organisation for Eco-
nomic Co-operation and Development (see, e.g. OECD, 2015). The OECD regards
demographic change as posing both social and economic challenges for governments
in coming years (OECD, 2006: 17–25). With growing dependency ratios, as individuals
rely on pension income for a longer period, and spend a smaller proportion of their
overall lifetime in employment, exten ding working lives is seen as a key means of
promoting the sustainability of pension systems and labour markets, thereby averting
the key economic risks of population ageing (see, e.g. OECD, 2006: 17–25, 2015).
A major legal reform designed to extend working lives has been the introduction of
age discrimination legislation at the European Union and domestic level, including in the
United Kingdom (‘UK’). Prior to the introduction of legislation, voluntary measures to
address age discrimination, such as the non-statutory code of practice adopted in the UK
in 1999, had limited impact on organizational practice. For example, a survey of UK
employers conducted in 2000 found that only 8%thought they would be likely to make
changes as a result of the code; and 63%thought that they were not at all likely to make
any changes as a result of the code (National Opinion Polls, 2001: 23). Most employers
did not see age discrimination as an issue for their own business (National Opinion Polls,
2001: 23). Thus, even in 2001 there was ‘a small but growing level of support’ for legal
intervention to address age discrimination in employment (National Opinion Polls,
2001: 24).
In 1997, the Treaty Establishing the European Community was amended by the
Treaty of Amsterdam ([1997] OJ C340/01) to include a new Article 6a (Article 13
EC, now Article 19 TFEU) which empowered the Council of the European Union to
take action to combat discrimination on a number of grounds, including age. Empowered
by Article 19 TFEU, in 2000 the Council of the European Union adopted Council
Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation ([2000] OJ L303/16 ‘the Directive’) which
established a general framework for equal treatment in employment and occupation,
including on the grounds of age. The Directive was implemented in the UK by the
Employment Equality (Age) Regulations 2006, SI 2006/1031 (‘the Regulations’). These
provisions were later consolidated into the Equality Act 2010 (EqA). These provisions
have the potential to secure both instrumental economic ends, in being used as a means
of relieving pressure on pension systems or the labour market from demographic ageing;
and intrinsic ends, having value in and of themselves in acknowledging the dignity and
inherent worth of older workers.
In seeking to achieve these ends, th e EqA could be seen as a piece of refle xive
legislation. However, many aspects of the EqA may be better described as a form of
command and control regulation. Systems theory posits that command and control
regulation risks falling into a ‘regulatory trilemma’,
1
including from a lack of response
to legislation due to an incongruence between law and society. This may jeopardize the
ability of the EqA to achieve either instrumental or intrinsic ends. As we reflect on five
years of the EqA, it is timely to consider whether the EqA is actually achieving either of
these ends in practice.
Blackham 123
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