Age discrimination: Equal treatment with exceptions

International Journal of Discrimination and the Law

Volumn 6, Issue 3, 2005, Pages 251-266

  Sargeant, Malcolm ^a  

^a MIDDLESEX UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 13844273845     PISSN: 13582291     EISSN: None     Source Type: Journal    
DOI: 10.1177/135822910500600304     Document Type: Review

References (47)

1. Office for National Statistics; see www.ons.gov.uk.
2. House of Commons Select Committee on Education and Employment report Age Discrimination in Employment Seventh Report Session 2000-01;
3. see generally, Sargeant, Malcolm (1999) Age discrimination in employment. Institute of Employment Rights, London.
4. McKay, Stephen and Middleton, Sue (Researchers) (1998) Characteristics of Older Workers Centre for Research in Social Policy, Lough-borough University Research Report RR45 DfEE.
5. Taylor, Phillip and Walker, Alan (1994) The ageing workforce: employers' attitudes towards older people Work, Employment and Society 8, 4 pp. 569.
6. Living in Britain - General Household Survey 2000; Current pension scheme membership by sex and socio-economic group.
7. See also Uncovered: workers without pensions (2002) TUC.
8. Survey of retired individuals belonging to two trade unions, PCS and NATFHE, carried out by Malcolm Sargeant 2003;
9. hereinafter referred to as the Middlesex age survey. For a full analysis of this survey see Sargeant, Malcolm (2004) Age Discrimination in Employment in Further and Higher Education Education Law Journal 91-97.
10. Inactivity here means not being in paid employment; it does not necessarily mean being inactive in any wider sense.
11. Age Diversity in Employment (1999) DfEE Publications, Nottingham.
12. Marsh, Alan and Sahin-Dikmen, Melahat (2003) Discrimination in Europe Eurobarometer May.
13. In relation to racial or ethnic origin, religion or beliefs, disability, age and sexual orientation.
14. Towards a Europe for all Ages Communication from the Commission COM (1999) 221.
15. Report requested by Stockholm European Council: 'Increasing labour force participation and promoting active ageing'. COM (2002) 9.
16. Directive 2000/78/EC OJ L303/16.
17. Clauses 4 and 5 of the Preamble to the Equal Treatment in Employment Directive.
18. This definition of harassment has already been implemented in the United Kingdom in other Regulations on Equal Treatment in Occupation concerning sexual orientation and religion or belief.
19. Council Decision 2000/228/EC.
20. Council Decision 2003/578/EC.
21. Clause 25.
22. Article 2 Directive 2000/78/EC.
23. Contained in Towards Equality and Diversity DTI.
24. Public and Civil Service Union (PCS) and the National Association of Teachers in Further and Higher Education (NATFHE).
25. See Sargeant, Malcolm (2004) Mandatory retirement age and age discrimination in employment Employee Relations Vol. 26 2 pp. 151-166.
26. National Association of Teachers in Further and Higher Education.
27. Public and Civil Service Union.
28. This was made up of 500 to NATFHE members in Further Education, 363 to members in Higher Education and 500 to associate members of PCS. A number of other trade unions expressed an interest in participating but failed to do so mostly because of problems associated with identifying a random sample of retired members.
29. The rate for NATFHE was 48.6% and for PCS 45.6%.
30. This was an option proposed by the Government in its consultation proposals in 2003.
31. Meadows, Pamela: Retirement ages in the UK: a review of the literature DTI Employment Relations Research Series No. 18.
32. (2002) Early retirement schemes still the norm in final salary schemes IDS Pensions Bulletin 160 November p. 4.
33. Department for Work and Pensions 2003.
34. Grattan, Patrick (2002) Short guide to pensions, retirement and work Third Age Employment Network October.
35. Equality and Diversity: Age Matters Response by the Chartered Management Institute, October 2003.
36. It might be interesting to do a comparative survey about experiences between the public and private sectors.
37. See Equality and Diversity: Age Matters Age Consultation 2003 DTI, also considered below.
38. Clauses (1) to (6) of the Preamble; there is mention of the Community's long history of supporting the principle of equal treatment between men and women, but, of course, action on other issues, such as racial discrimination, and age are much more recent initiatives.
39. See generally Friedman, Lawrence M (1984) Your time will come: the law of age discrimination and mandatory retirement. Russel Sage Foundation, New York.
40. Age Discrimination in Employment Act 1967 as amended.
41. This is not necessary, however, because discrimination can still take place between those people in the protected group, i.e. those over 40 years of age. O'Connor v. Consolidated Coin Caterers Corp 517 U.S. 308 (1996) at 313; see also Metz v. Transit Mix Inc. 828 F.2d 1202 (7th Cir 1987) which concerned the dismissal of an older worker with 27 years service in favour of a much younger worker who would be paid considerably less.
42. See also Beth M. Weber, The effect of O'Connor Consolidated Coin Caterers Corp on the requirements for the establishing of a prima facie case under the age discrimination in employment act. Rutgers Law Journal vol. 29 no. 3 (1998).
43. Fredman, Sandra and Spencer, Sarah (2003) Age as an equality issue Chapter 3 'The age of equality' Sandra Fredman p. 43;
44. see also Janet Dine and Bob Watt Discrimination Law Longman (1996): 'If liberalism could be said. to have a central dogma it would surely include, at least at a preliminary stage, the provision that all citizens irrespective of gender, origin or other irrelevant characteristics should have an opportunity to secure for themselves, in reliance upon their own merits and endeavours, their choice from among the goods available in a given society'.
45. Although Sandra Fredman (op. cit.) suggests that reliance on merit is too limited because it requires judgements which are neither scientific nor objective.
46. Op. cit. n4 at p. 580.
47. Fredman, Sandra and Spencer, Sarah (n39) Chapter 2 Implications of the ageing process p. 12.