Active Ageing: the EU Policy Response to the Challenge of Population Ageing

6.3 Limits of EU Law on Age Discrimination

In 2000 the EU adopted the “Directive on Equal treatment” (2000/78/EC) to prohibit unjustified forms of age discrimination in employment and the EU Member States had to introduce legislation to implement the Directive at the latest by the end of December 2006.
On the one hand, it is fair to say that first, the adoption of the Directive reflects the growing recognition of the problem of the age discrimination at EU level. Thus, the adoption of a legal framework at the EU is a positive thing given that “policy-makers in most EU countries have been until recently reluctant to recognise — in law or policy — the existence of age discrimination” (Walker, 2003). The liberal democracies have been much slower in acknowledging the unfairness of age discrimination than in squaring up to discrimination on grounds of race or sex (Leeson, 2006). Second, this has enabled the EU to establish a common legal and policy approach as well as to raise the level of protection against age discrimination across the EU (COM, 2004). Thus, many member states (e.g. UK) have been obliged to legislate against age discrimination in employment (Hornstein, 2001). Third, it is also important to note that the legislation is but one component of action to combat age discrimination. Legislation to stop employers’ mindsets and discrimination on the basis of age will not work unless it is accompanied by culture change (People Management Magazine, July 2005) and concerted action by all stakeholders will also be crucial to the success of these efforts (COM, 2004).
On the other hand, it is also important to underline the importance and the crucial role that the anti-discrimination legal framework can play, to make a significant shift in the attitude of employers and society at large towards the older workers. The evidence from several countries that have already adopted such laws (USA, Canada and Australia) points in this direction. Precedents and experience from these countries show that the legislation has had a positive effect on employment rates of older workers (notably in the USA), (Hornstain, 2001, 3) and that the employment behaviour has changed to the extent that explicit (direct) discrimination (advertising vacancies, selection procedures) — especially in recruitment — has reduced.
Therefore, a key step in any effective age equality strategy is to introduce legislation that prohibits unjustified forms of age discrimination in employment and provides effective remedies for victims of such discriminations (O’Cinneide, 2005). The question is does the Directive achieve the objectives to prohibit unjustified forms of age discrimination in employment and to provide effective remedies for victims of such discrimination? The answer given by the Directive to this question is mixed, for many reasons.
a. The Directive contains vague and opaque provisions about age discrimination
Even though the Directive is the major relevant legal instruments in the EU age equality strategy, it set very broad minimum requirements (Hornstain, 2001) and great uncertainty surrounds many of the crucial issues covered. Therefore the Directive does not achieve the objective to completely distinguish circumstances where age (and age-linked characteristics) are legitimate and where they are not and it leaves many issues to national governments and to the European or national judiciaries.
The ambiguity and the opaque character of many articles of the Directive have created a gap between the legal provisions agreed at EU level and the way these articles are understood and implemented in some member states. Therefore the interpretations of the Articles of the Directive in any member states are at variance with the standard view of the Directive.
A new research carried out by the People Management Magazine (UK) in 2005 demonstrated that any vision of standardized EU employment laws for age discrimination is a long way off. The study of the status of age laws in 20 EU member states had revealed variations in the interpretations of the age stand of the EU anti-discrimination directive, ( , 2005). The Criticism by Eurolink Age and other NGOs of the text of the Directive centered on the very broad and vague wording of the examples of the legitimate objectives listed in Article 6(1), such as the ‘legitimate employment policy’, ‘labour and training objectives’. Their concern was that including such open-ended and broad examples in the text might encourage a loose approach to the objective justification test on the part of government and national courts (O’Cinneide, 2005).
Their concerns prove to be grounded given that what they feared really happened in practice. Given that the Article 6(1) lists broad guidelines of legitimate objectives many member states have added other objectives incompatible with the Directive. For example, some countries like France, Greece, Luxembourg and Portugal would allow an employer to use profitability as a justification for age discrimination, which is justifiable at the national level even though it can be challenged before the ECJ ( ).
b. Directive does not define ‘age’
The Directive does not define ‘age’, but unlike the US age discrimination legislation — the age group protected by the US legislation is 40 year olds and over — its scope is not limited to discrimination against those above a particular age (O’Cinneide, 2005). Therefore, the provisions of the Directive must be applied to the victims of the age discrimination from all age groups. But, adopting a right-centered approach to age equality issues for both young and older is a substantial weakness of the Directive, since the general rule is that the legal acts are adopted to protect those who are in a more vulnerable position, as the US legislation does.
There is plenty of evidence and research that supports that the age-based discrimination affects older people (those between 50 and the state pension age) more than younger age cohorts (Leeson 2006; Walker, 2006). Eurobarometer opinion in May 2003 revealed interesting results as regards discrimination. Perceptions of equal opportunities within employment place people over 50 years of age as the third most disadvantaged group after those with learning difficulties and physical disabilities (Leeson 2006).
Therefore, it sounds as if the Directive was more a legal rhetoric than an efficient protection against age discrimination at EU level which cannot play any significant role to effect a shift in the attitudes of employers towards the older workers.
c. The Directive provides many exemptions and derogations
The Directive sets out too many exemptions from the general prohibitions on age discrimination. Besides, under Article 6(1), it allows direct and indirect discrimination if it is ‘objectively justified’, i.e. if it pursues a ‘legitimate aim’ and is a “proportionate means of achieving that aim”. it follows that the Directive permits multiple-level-exemptions, European, national and employer levels.
First, at EU level, Recital 14 and Article 3(3) exempt the state social security schemes from the Directive general provisions, and thus from the requirement to justify age-biased distinctions (O’Cinneide, 2005).
Second, the Directive permits the Member states to introduce legislation where age discrimination can be justifiable whether on the basis that it constitutes a genuine occupational qualification (Article 4(1)), direct discrimination or indirect discrimination (Article 6(1)(2)). In fact, many member states (UK, Netherlands, France etc.) have chosen to take advantage of these exemptions and have enacted blanket exemptions (e.g. for retirement ages) that will be automatically deemed to be justified at the national level under Article 6(1), O’Cinneide, 2005).
Third, the directive establishes a framework for assessing the legitimacy and justification for the use of age distinctions even by employers. Therefore, many member states have adopted legislation whereby employers are entitled to set retirement ages by contract, collective bargaining or unilaterally. For example in some countries employers are given the right to set retirement ages either by legislation (Estonia) or employers are able to set retirement ages because legislation deprives the employers over that age of protection from unfair dismissal (e.g. Cyprus, UK). Moreover, even where there is not exemption under Directive or national legislation, employers can still seek to ‘objectively justify’ the age discrimination (e.g. UK), under the procedure set out by Article 6(1) of the Directive (DTI/DWP, December 2006).
The consequences of this approach are that age-discrimination at the EU and national level is a half-hearted approach which does not send strong signals to the employers to change the attitudes towards the older workers. As Hornstein best of all puts it “too many exemptions tend to discredit anti-discrimination laws” (Hornstain, 2001).
d. The Directive does not provide effective remedies for victims of age discrimination
The EU law on age discrimination is so complicated that its provisions will pose many legal problems and challenges even for those protected by the Directive — persons under MR ages — to establish a successful claim for direct or indirect discrimination.
The Directive defines direct age discrimination in Article 2.2(a): “direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, [on the grounds of age]”. Thus, the Directive adopts a ‘comparator approach’, this means that, a claimant will have to point to a real (actual) or ‘hypothetical comparator’, compared to whom he or she was treated less favourably on the grounds of age (O’Cinneide, 2005). But the fluid nature of a person’s age, the uncertain and shifting nature of ‘age groups’ and the differences in position and expectations that often exists even between people of very similar ages make the application of the comparator test difficult in the context of age. When using the device of the ‘hypothetical comparator’, it is not clear with whom an alleged victim of direct age discrimination is to be compared. The consequence is that there is the danger of an excessive formalism that might threaten the absence of an actual comparator as a reason for denying a remedy (O’Cinneide, 2005).
Age also presents challenges in applying the indirect discrimination test. Indirect discrimination is primarily concerned with disadvantages that are imposed on particular groups rather than the individuals (with whom direct discrimination is concerned). According to the Article 2.2(b) of the Directive indirect discrimination will exist where: a) an apparently neutral provision, criterion or practice is in place, b) people of a ‘particular age’ are put at a c) ‘particular disadvantage’ compared with others unless that provision criterion or practice can be d) objectively justified. It is not clear what effects this provision will have (O’Cinneide, 2005).
Here two problems arise: first, the difficulty to define of the ‘age groups’ and second, to establish what a ‘disadvantage’ is. As regards the ‘age group’, it may prove very difficult in practice to define the relevant ‘age group’ in indirect age cases given the fluidity and the diversity of the age groups. People of ‘a particular age’ may very immensely in terms of qualification, competences, skills, aspirations, financial position and other characteristics. Can the relevant ‘age group’ be defined as ‘all those persons who are of his actual chronological age’? unlike other equality grounds, the extent to which considerable variances exists within age groups makes these problems more complex (O’Cinneide, 2005, 26). Second, for similar reasons, it may be very difficult to select a comparator age group in order to demonstrate or establish ‘disadvantage’. The fluid nature of the age groups and the constantly shifting comparisons that can be made between different age groups present difficulties in identifying suitable comparators. The consequence is that, there is the risk of an excessive reliance upon strict chronological categories of age that may be too formalistic and narrow to reflect the fluid nature of age groups (O’Cinneide, 2005). Therefore here again this means difficulties for claimants (victims) of the indirect discrimination to establish indirect discrimination on the grounds of age before the courts or the tribunals. Moreover, many member states appear content to leave these issues to the national and European Judiciary: but the lack of the appropriate legislative or administrative guidelines in the US Canada and Australia, in the context of age discrimination has often resulted in legal uncertainty, ad hoc development of legal rules a lack of clear principles and claimants being deterred from bringing cases (O’Cinneide, 2005, 33).
Therefore directive leaves in a state of uncertainty the victims of the age discrimination, that is, mainly the older workers (age group 55-65) as the most prone ‘age group’ to the age discrimination which will find difficulties to establish direct discrimination on the grounds of age.
To sum up the critique of the EU approach, all these weaknesses revealed above highlight the need for a profound reform and call for the EU to rethink its current approach along new policy and legal lines.

Pages: 1 2 3 4 5 6 7 8 9

Tags: , , , , , ,