Graduate Management Essay
Your essay should be written as a critical review or debate surrounding your chosen title (e.g. a debate discussing evidence for and against different issues and one view/theory against another). Your discussion should therefore be closely linked to the literature. Inclusivity awareness – Are we talking real concern relating to global challenges or just political correctness?
You will be required to write this in “academic speak” which means you should not personalize this writing (do not use I) but write in the third person.
In October 2006 The Employment Equality (Age) Regulations were made law in the UK. Currently 69% of men over 45 in the UK are unemployed and half the number of 45-year-olds who lose their jobs never return to work -Discuss!
Title: Impact of the 2006 Employment Equality (Age) Regulations on employment practices in the UK
The Employment Equality (Age) Regulations came into force in October 1, 2006. The core aim of these regulations was to illegalize discrimination against employees, workers, trainees, and job seekers on the basis of their age. The enactment of these regulations brought to the fore the debate on age diversity, ageism, and age discrimination. It particularly put into perspective the existing legislation on age discrimination and its effectiveness in employment practices in the UK.
The enactment of The Employment Equality (Age) Regulations 2006 is an indication of the realization across the UK society that there is a need to tackle age discrimination in efforts to attract, retain, as well as motivate staff in addition to enhancing the reputation on the part of the employers. However, despite the coming into force of these regulations, age discrimination still remains a major problem in the UK. Currently, 69% of men aged over 45 in the United Kingdom are unemployed. Moreover, half the number of people aged 45 and above, who lose their jobs, never return to work. In light of these grim statistics, this paper focuses on assessing whether the Employment Equality (Age) Regulations 2006 have had any positive impact on employment in the UK.
Overview of the Employment Equality (Age) Regulations 2006
The Employment Equality (Age) Regulations 2006 apply to numerous entities, all of which are involved in one way or the other in the employment of people of age brackets in which age discrimination is likely to occur. These entities include employers, public and private sectors, trade unions, vocational training providers, employer organizations, professional organizations, as well as trustees and managers of various occupational pension schemes (Edwards, 2009).
In the context of these regulations, an employer is simply anyone who has hired people as employees or who enters into contract with another person or persons to do some work for him. The issues addressed in these regulations relate to recruitment, transfers, terms and conditions, promotions, training, and dismissals.
According to the regulations, it is unlawful to discriminate directly against an individual on grounds of their age. In this regard, it is illegal to treat the individual less favorably compared to others simply because he has attained a certain age. The only exception is if this treatment is objectively justified. Additionally, the regulations prohibit indirect discrimination. Indirect discrimination in this regard is viewed as the practice that puts people of a particular age at a disadvantage, unless, of course, this can be justified objectively.
The other form of discrimination that is addressed is harassment (Adnett 2007). Harassment is viewed as an unacceptable practice that violates the dignity of an individual while at the same time creating an environment of intimidation, humiliation, and offense. Moreover, the circumstances leading to the way the individual is perceived greatly contribute to the degrading environment.
The regulations also make it illegal for someone to be victimized simply because of an allegation or complaint that they have already or have an intention of making by giving evidence relating to a complaint about discrimination on the basis of age. According to these regulations, it is also illegal to discriminate against an individual, in specific circumstances, once the working relationship has come to an end.
Another important provision in these regulations is that employers could be held responsible for the actions of employees who continue discriminating against some individuals on the basis of their age (Filinson, 2008). In this regard, the regulations make it crucial for employers to ensure that their staff members are fully trained on how to avoid age discrimination.
Additionally, the Employment Equality (Age) Regulations 2006 removed the upper age limits on redundancy and unfair dismissal. Moreover, the national default age of retirement was set at 65 years. By virtue of this provision, any compulsory retirement that is subjected to employees who are below 65 years of age is deemed unlawful, unless, of course, they are objectively justified. The regulations confer upon employees the right to make a request to continue working beyond the retirement age of 65 or any other retirement age that the company sets. According to the Employment Equality (Age) Regulations 2006, it is the responsibility of the employer to consider such requests.
Nevertheless, the regulations also provide certain limited circumstances when it is lawful to treat different people differently because of their age. One of these circumstances is when an objective justification is present for treating people in different ways (Manfredi, 2009). For example, it is legal to put in place a maximum age for recruiting or promoting employees. In some cases, this maximum age for recruiting or promoting employees may not be a reflection of the training requirements for the position. Moreover, it is not a must that a reasonable employment period be put in place before retirement.
Another circumstance is the situation where the individual is already older than the normal retirement age set by the employer, or is within 6 months of reaching this age. If the employer does not have a retirement age, the age of 65 is used as the benchmark for purposes of this exception. In this regard, the regulations provide a specific exemption that allows employers refusal to recruit such a person.
The other crucial exemption relates to the genuine occupational requirement (GOR), which specifies that a person must have attained a certain age for him to qualify for recruitment (Urwin, 2006). For example, the employer may be looking for persons who are young in the production of a play or old people in the production of a different play. Lastly, if the discrimination is covered in one of the exemptions or exceptions stipulated in the regulations, then it is not unlawful. One example of this situation is pay that relates to the National Minimum Wage.
Criticisms of the Employment Equality (Age) Regulations 2006
It is worthwhile to note that the UK did not have a choice in the enactment of these regulations. The European Equal Treatment Framework Directive 2000 had already put in place a requirement that pressed upon member states to enact legislation that outlawed age discrimination (Squires, 2008). In this requirement, 2006 was the latest possible year during this requirement could be fulfilled. The need for this legislation was further emphasized by the numerous studies that showed that almost half of the people claiming to have been harassment or bullied in their workplaces cited age as a key factor.
The fact that the UK government did not act fast enough to put in place a legislation that made it illegal to discriminate a person in the workplace on grounds of his age is an indication of its unwillingness to deal with this problem once and for all. The government waited until the deadline for compliance with The European Equal Treatment Framework Directive 2000 had almost passed (Bewley, 2006). Moreover, when the regulations finally came into force, many critics lamented that the exceptions and weaknesses were so many that the protection they were going to offer would be very weak. Perhaps this is the prediction that has come to pass with realization that currently, 69% of men aged over 45 in the United Kingdom are unemployed, and that half the number of people aged 45 and above, who lose their jobs, never return to work. These statistics indicate that age discrimination continues to thrive six years after the Employment Equality (Age) Regulations 2006 came into force.
One example of the weakness of these regulations in preventing age discrimination relates to the age restrictions that are normally specified in job advertisements. Although the regulations make it illegal for employer to advertise a job that specifies the age limits to be 25-35, it allows many other requirements that perpetuate age discrimination (Swift, 2006). Unlike other forms of laws that are aimed at tackling discrimination, it is possible to justify even direct discrimination using the Employment Equality (Age) Regulations 2006. All that the employer or the training provider needs to show is that the direct age discrimination is intended to achieve a legitimate aim.
Another key issue is about the default retirement age of 65. It was envisaged that the regulations would make it free upon employers to adopt this retirement age. Some institutions would definitely choose not to adopt it; others probably would choose to adopt it. In cases where employers want to put in place a retirement age of below 65, they have to objectively justify it. In many instances, it is hard to determine the sort of justification that could be there for retiring employees compulsorily before they attain the age of 65.
The law also sets up a process to be followed when adopting the default retirement age. The employer is required to writer personally to each employee no more than one year before his birthday and not less than 6 months before it, informing them of them of the retirement date that has been adopted, and the fact that they have a right to request that they be allowed to continue with employment (Riach, 2009). Employees who intent to continue working must present their request in writing, and then a meeting must be held, in which the employee may choose to be accompanied with a confidante. If the request is refused, the employee even has a right to an appeal. However, the bad news in this circumstance is that the employer does not have to give any reason for his refusal (Aspinall, 2008). As long as the due process has been properly followed, anyone forced to retire at 65 is deemed to have been subjected to fair dismissal.
On this basis, some critics have raised the concern that the Employment Equality (Age) Regulations 2006 have failed to implement in a proper manner the European Directive upon which the regulations are based. In such cases, the complainants have sought to take a judicial review against the UK government. Some of the issues that these complainants have been seeking to challenge include the legality of forced retirement at the age of 65, the scope within which direct discrimination is justifiable, and the absence of a strict requirement that forces the employer to provide reasons for refusal to a request by a 65-aged employee to continue working.
The regulations have also been viewed as weak because of being unclear in some instances (Martin, 2007). For example, some students feel that the regulations subject them to discrimination with regard to the academic courses that they can take in college or university. The students worry that although it is evident that imposing specific age limits for admission into certain courses is obviously problematic, it is possible for some college and university administrators to ‘objectively justify’ such limits.
The UK government also appears to have participated in perpetuating age discrimination on one side and appearing to be fighting the problem on the other. For instance, in late 2006, it changed the age limit for Further Education student from the 55 to a higher age of 60 (Sargeant, 2006). In this way, it appeared to perpetuate age discrimination, only that it was doing so at a different threshold. Moreover, the government policy that concentrates most Further Education funding on people aged between 16 and 19 years is profoundly discriminatory because of the way in which it leads to massive cuts in the number of people accessing adult education.
The government, on its part, appears confident that it has been acting within the provisions of the law. One of the reasons given by the government is that the European Directive explicitly states the regulations are not applicable to payment made in the form of state schemes. The authorities claim that this demonstrates that this translates into the exemption of student support as well as funding for forces. However, many non-governmental organizations that are campaigning on this argue that the government should undertake changes on this issue on moral grounds and not purely on legal grounds per se.
Nevertheless, there is a positive side to these regulations (Wood, 2008). They have inspired many employees to heap pressure on their employers to put in place a fixed retirement age. Moreover, many employees appear keen to learn about the proper procedures that should be followed when dealing with retirement, particularly during the period of transition (Dickens, 2007). In workplaces where the most significant level of progress has been achieved, employers have started negotiating with their employees about a policy on ensure that values relating to age equality are upheld at all times (Leeson, 2010).
Moreover, although the Employment Equality (Age) Regulations 2006 are weak, they have attracted a lot of attention from employers (Erlich, 2008). They have triggered an air of optimism among employees, who are confident that the general atmosphere in many workplaces across the UK are going to change, particularly with regard to overtly ageist remarks as well as unacceptable attitudes that tend to reinforce age discrimination.
In general, though, the regulations may be said to have created an environment of uncertainty in most UK workplaces. Presently, about 57% of employers in the UK, mostly the small ones, have not put in place a fixed retirement age (Sargeant, 2010). The advice that these employers get from their lawyers on most occasions is that they need to adopt a retirement age for purposes of self-protection. Moreover, the regulations have a loophole that the employers could exploit through blanket refusal of all requests by employees to continue working. The rationale for this blanket refusal is that employees may claim to have been discriminated against on other grounds such as race or sex. If this turns out to be the trend, employers who have traditionally been comfortable with letting some workers continue working after attaining the age of 65 may no longer do so.
This uncertainty has also been proven to exist through the large number of organizations that have been going to court to seek a judicial review of the regulations (Hepple, 2010). One of the main areas of concern has been that the government, through these regulations, restricted the protection that was available to men and women aged above 65 through the adoption of the age of 65 as the ‘default retirement age’. These regulations stipulated that it is only in exceptional circumstances that employers would succeed in justifying forced retirement for men and women aged below 65. What this means in practice is that the regulations remove virtually all protections against age discrimination for people aged above 65. This is evident in the fact that the employer can compel an employee to retire once he attains the age of 65, and he can also refuse to hire someone just because his age is 65 or above.
In one of the legal challenges two organizations, Help the Aged and Age UK, expressed the need for the Employment Equality (Age) Regulations (2006) to be subjected to a judicial review (Edwards, 2009). In this case, these organizations insisted that the UK government did not implement the EU directive on Equal Treatment in a proper manner. One of the main areas of concern was the default retirement age that was applicable nationally to all workers in the UK. The organizations also challenged the justifications that the regulations allowed employers to present for their direct discrimination against people near or above the age of 65 entirely on grounds of their age. Such concerns are a manifestation of the extent to which there is uncertainty regarding the appropriateness of these regulations in dealing with the problem of age discrimination in the UK.
In the judicial interpretation case, the judge declared that since the default retirement was lawful at the time when it introduced at the first time, it would remain as it is. However, the judge shared in the concerns of the two organizations, noting that there was a ‘compelling’ case for the default retirement age to be pushed higher, beyond the 65-year mark (Edwards, 2009). In other words, it is true that any action aimed at forcing people out of work when they attain the age of 65 amounts to direct age discrimination.
On a positive note, one of the positive actions that the UK government has undertaken regarding the weaknesses of the regulations is pushing closer the date of review of the default retirement age from 2011 to 2010. This move, together with the government’s willingness to scrap mandatory retirement ages applicable to all employees except the most senior civil servants, has rekindled a sense of hope among employees who had been living in fear of being discriminated against by their employers on grounds of their age.
Nevertheless, more needs to be done with regard to the improvement of employment practices, particularly towards older workers. Since the enactment of the regulations, only a slight improvement may be said to have been achieved. Although this is disappointing, many optimists may take courage in the slight positive changes that have occurred within the employment cycle in the UK workplace (Sargeant, 2009).
There are various reasons why only a slight improvement may have been achieved regarding employment relations towards aged workers. One of these reasons was that default retirement age acted as a major restriction for the achievement of any potential for meaningful positive change. This is why the abolition of the default retirement age by the UK government was received across different spectrums of society. Many stakeholders, including the civil society, the older employees, and the government hope that this abolition will lead to a greater pace of progress in the quest for improved employment relations towards the ageing population.
It should also not be lost upon the stakeholders that line managers have a crucial role to play in ensuring that these employment relations are improved. Their views should be sought since they are crucial in this noble undertaking. However, one major problem that manifests itself in this regard is the inconsistence and the lack of alignment of anti-discrimination laws with official human resource policies.
It is imperative that efforts to review these regulations are undertaken with close reference to the fact that the older population, particularly in developed nations such as the UK, continues to increase at an alarming rate. At the same time, age discrimination should be viewed as a serious problem in today’s society. This is a problem that deserves to be addressed through special legislation. This is the best way through which the existing age-related inequalities can be addressed.
In many countries, including Denmark, Australia, the USA, and Ireland, serious attempts have been made to address the issue of age-related issues in the world of employment through special legislation. However, on their own, laws are inadequate instruments of changing discriminatory practices and attitudes, especially those that are deeply rooted in the society’s culture psyche. It takes the concerted efforts of all stakeholders, particularly the voluntary actions of employers as well as the society at large to transform common prejudices and perceptions.
Prior to the enactment of the regulations, business groups in 2005 expressed fears that the new laws would bring damage to businesses (McVittie, 2008). These fears, it appears, were unfounded since no incidences of damaged businesses have been reported to have been caused by the implementation of these regulations. On the other hand, however, at the macroeconomic level, no significant change appears to have been achieved with regard to employment patterns, particularly for people aged more than 65.
The biggest positive change has occurred in the area of organizational policies regarding recruitment. Regarding attitudes towards older workers, most scholars report mixed evidence. It is evident, though, that following the enactment of the Employment Equality (Age) Regulations 2006, the prevalence of age discrimination appears to have become slightly less prevalent than in the pre-2006 period. Nevertheless, there is a likelihood that subtle age discrimination continues to be a major bother to older employees. Conventionally, such discrimination tends to be hard to prove and it may not even be reflected accurately in empirical research findings. On the overall, by enacting the Employment Equality (Age) Regulations 2006, the UK government has brought about change that amounts to a very small step towards the right direction in wiping out the problem of age discrimination.
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