Towards Equality and Diversity,Implementing the Employment and Race Directives:
GMB Response, March 2002
GMB,Britains General Union, represents 700,000 members working throughout the UKin both the private and public sectors. GMB has members working in the areasof:
Financial,commercial, and professional services
Clothingand textiles
Construction
Furnituremanufacturing
Energyand Utilities
Engineering
Foodand leisure
Processindustries
PublicServices
TheGMBs membership is characterised by its diversity and we aim to reflect thatin our structures, our rule book and everything we do. GMB has a long record of campaigning forequality and against discrimination. We aim to put equality issues at the topof the negotiating agenda in all the areas where we organise. This work ismainstreamed throughout the union and guided by the following bodies:
Nationaland regional Equal Rights Advisory Committees
Nationaland regional Disability Forums
National and regional Race Advisory Committees
NationalYoung Members Bureau and Advisory Committee
Inthis submission we would like to make some points relating to issues raised inPart 1 of the consultation document before responding in detail to thequestions set out in the response form and parts 2 and 3 of the document.
GMB
22-24 WorpleRoad
London
SW19 4DD
28March 2002
Part 1: Equality, Diversity and the Directives
Chapter 2: What do the Directives mean for Great Britain?
Scope
Para2.3 Coverage: We would urge the Government to include goods and serviceswithin legislation implementing the Employment Directive. We strongly supportthe ethos of the consultation document which is to seek to maximise consistencybetween existing and new strands of discrimination legislation. The RaceRelations Act, the Sex Discrimination Act and the Disability Discrimination Actall cover the provision of goods and services. It is inequitable and wrong thatforms of discrimination against lesbian and gay people for example would belawful in areas such as accommodation, healthcare, education and financialservices, but if the same discrimination occurred because of their gender orrace it would be unlawful.
Para2.4 (b) Coverage of workers: We note thatthe document refers to coverage of someworkers in addition to employees and the self-employed [our italics]. We wouldstrongly argue that the Directives are intended to cover all workers and thatthe Government should implement them on this basis. In relation todiscrimination there can be absolutely no justification for denying someworkers their fundamental rights on the grounds of technicalities over theiremployment status. We would remind the Government of the principles laid out inthis consultation document: We want to ensure that everyone is encouraged to realise their potential. [our italics]
Workerswhose position in the labour market is precarious or marginal are among themost vulnerable to discrimination and the least able to negotiate fairtreatment. Again we remind the Government of its stated aim: to developeffective legislation which will have a real impact in removing unfairdiscrimination.
Weurge the Government to follow existing discrimination legislation in applyingthe new protections. The SDA, RRA and Equal Pay Act apply to anyone under acontract of service or of apprenticeship or a contract personally to executeany work or labour. The DDA wording is slightly different : under a contractof service or of apprenticeship or a contract personally to do any work.
Para2.4 (d) Exclusion of all state benefits: We accept that state benefits areexcluded from the Directives. But we would nevertheless urge the Government tocommit itself to a fundamental review of the social security system, with aview to comprehensive equality-proofing. For example, many age-relatedprovisions such as those on redundancy payments in insolvency situations arearbitrary and out-of-date. And there are many instances where the systemrecognises the relationships of unmarried heterosexual couples, but not thoseof same-sex couples.
Para2.4 (f) Vocational training: We would wish to ensure that allWelfare to Work schemes are covered, although schemes focused on a particularage group should still be permissible where these are aimed at addressingparticular disadvantages faced by that age group.
Para2.4 (g) Armed forces: We can see no justification for the exclusion of the armedforces from the provisions on age and disability. The diversity of jobs withinthe modern armed forces reflects to a large extent those in civilian life andtherefore should be treated as such.
Defence ofrights: seeking redress
Para2.12 Support and redress: The task of trade unions or specialinterest groups in supporting claimants and bringing cases would be greatlyassisted if claimants were able to bring class actions. This would removeunnecessary duplication of work in preparing and lodging claims and wouldencourage claimants to come forward in the very difficult and vulnerablecircumstances that usually attend discrimination situations. It would make aparticular difference to the ability to tackle complex areas such as: racediscrimination where unequal pay is based on occupational segregation; andmulti-faceted discrimination, which is going to take on even greater importancewith the new strands.
Classactions are all the more important because the Government does not intend tomake pay equality audits compulsory. The CAC proved a very effective tool inencouraging implementation of non-discriminatory pay structures (eg at LondonBrick, Renold Ltd and Prestcold Ltd). This was done through collective remedyprovisions in the Equal Pay Act which were abolished by the ConservativeGovernment. The CAC looked behind labels to test for covert discrimination. Theability to take class actions would allow this kind of approach to bere-introduced.
Wewould also like to state that we have grave concerns about the provisions onEmployment Tribunals and unfair dismissal in the current Employment Bill. TheDTI has received separate representations from us on this issue, but we wouldlike to state here that we believe they will deter the most vulnerable workersfrom enforcing their rights, particularly in discrimination cases, because oftheir difficult nature.
Para2.13 (c) We believe it is vital to establish as a general principle,rather than in certain situations, that complainants can seek redress afterthe employment relationship hasended. This issue has arisen in relation to discrimination and victimisationin work-references provided once employment has ended. It may also arise wherea worker tries to pursue a grievance with an employer after the employmentrelationship has ended.
Theremay also be cases where discriminationis experienced in relation to a employment benefits which continue afterretirement such as the use of sports or social facilities, or travelconcessions. Workers ought to have clear redress in these circumstances.
Paras2.14 2.15 Sanctions: The Directivesrequire remedies which are effective, proportionate and dissuasive. Thedocument considers that existing remedies fulfil this requirement. We do notagree with this interpretation. We believe that in order to be dissuasivetribunals should be enabled to make more punitive compensation awards which gobeyond measurable loss. And in order to be effective tribunals should be ableto order reinstatement and re-engagement. Failure to offer these should triggerhigher awards.
Tribunalsshould have the power to make recommendations on reducing the adverse effectsof unlawful discrimination generally. They should also be able to ensure thatremedies are effective, in terms of claimants ability to access them. In casessuch as those currently supported by the GMB involving the exclusion ofpart-time, mainly female, workers from occupational pension schemes, remedieswhich may be ordered by tribunals are likely to rely on low-paid women being ina position to pay back contributions. Many will be unable to do so if paymentis required in a lump sum, leaving them with no remedy at all.
Para2.16 Shift of burden of proof: We welcome the shift in the burden ofproof once a prima facie case has been established. But we are concerned aboutthe requirement that the claimant must produce clear evidence that discriminationhas taken place. The definition of this will be crucial. When people rightlyfeel they have been discriminated against, it is often difficult to obtainevidence. We accept that mere feelings cannot necessarily justify pursuing aclaim. However, a clear evidence requirement may be to strict a test to rootout discrimination.
Paras2.18-2.19 Victimisation: Under existing statutes it has beenvery difficult to establish that victimisation has occurred due to thedifficulty of proving links between events. We therefore believe that thereshould be no need for a comparator, that there should be a fast-track interimrelief procedure and that post employment victimisation be specificallyincluded. We would therefore call for a fundamental review of victimisationprovisions across the statutes, with a view to improving complainants accessto protection in this area.
Chapter 3: Our approach to implementing the Directives
Legislation
Paras3.1(b) and 3.2: We endorse the Governments desire to seek greater coherenceand consistency between the strands of discrimination legislation. We believethe most effective way of doing this would be to move towards a single equalityact. This will enable claims of multiple discrimination to be dealt with on thebasis of a one-stop-shop. It will reduce the burden on claimants who wouldotherwise have to take separate claims, as well as relieving the pressure onthe tribunal system and the public purse.
Furthermore,we believe that the Government should introduce the Directive rights through anEquality Bill 2003 which would enable it to take a more coherent andcomprehensive approach to these important new provisions, such as extendingthem to goods and services and making harmonising amendments to the SDA. We believethat in areas such as age discrimination the need for primary legislation togetherwith a statutory code of practice is particularly pressing, because thevoluntarist approach has signally failed.
Webelieve that Government should also review the range of Conventions andCovenants cited in recitals (3) and (4) of the Race andEmployment Directives and take these into account when drafting legislation. Wealso call on the Government to take this opportunityto sign and ratify Protocol 12 to Article 14 of the European Human RightsConvention, as this will strengthen its ability to secure the eradication ofdiscrimination in all its forms.
Para3.3 (c): In view of the above points on the need for a singleequality act, and the failure of the Voluntary Code on Age Discrimination tohave any impact, we would urge the Government to bring forward legislation onage discrimination rather than take up until 2006 to implement it. TheEmployers Forum on Age recently reported that three in ten employers had neverheard of the Code of Practice, while over two-thirds considered it would makeno difference to the way they ran their business.
Response form
Part 2: General issues for consultation
Chapter 4: Direct discrimination
Q5 Do you agree with ourapproach on direct discrimination?
The GMBis concerned about conflicting interpretations of the requirement that therelevant circumstances be the same or not materially different fordiscrimination to be found. In Shamoon v Chief Constable of the RUC, 2001 IRLR520, the Northern Ireland Court of Appeal took a very restrictive view of thecircumstances required for a comparator to be valid. Contrast this decisionwith Chief Constable of West Yorkshire v Vento , 2001 IRLR 125, where the EATsaid it did not matter that there was not an exact match with thecircumstances/situation of the comparators.
We wouldtherefore ask the Government to have another look at how a comparablesituation is defined.
We wouldalso recommend that the opportunity is taken to review another key aspect ofthe definition of discrimination. A key difference between SDA/RRA and the DDAis that the former refer to discrimination on the grounds of race and groundof sex, whereas the definition in the DDA refers to discrimination for a reason related to disability a subtlebut slightly easier hurdle to overcome. We recommend that the wording inrelation to race and sex should be brought in line with that for disabilityi.e. for a reason related to race orsex. This would make it easier for applicants where a claim of discriminationis well-founded but access to proof is problematic. This is consistent with thestated aim of achieving greater consistency between the various areas of discrimination law while not weakeningexisting protections.
Chapter 5: Indirect discrimination
Q6 On indirect discrimination, the choice isbetween a consistent definition across all the grounds of discrimination(option 1), or one which would minimise changes to current law (option 2). Which do you prefer?
We favour option 1 because it isvital that we achieve as much consistency as possible across the statutes. Thisis beneficial both for workers and for employers as they seek to understandthese new rights, particularly as discrimination often occurs on multiplegrounds. We welcome the expansion in the definition to cover provisions,criteria or practices. We believe this goes closer to capturing the range ofcircumstances that can give rise to discriminatory outcomes and closer fits thepost-McPherson understanding of discriminatory processes.
The inconvenience caused by morewholesale amendments to the RRA is outweighed by these benefits. We would also strongly urge the Governmentto use the same definition in the SDA.
On a related point, case law hasclarified that intention is irrelevant in both direct and indirectdiscrimination. However, we believe that it would aid clarity and promotegreater understanding if an express term were incorporated into legislationstating that discrimination can occur without intention.
Chapter 6: Harassment
Q7 On harassment, the choice is between astricter test for religion, sexual orientation and age, based on the words inthe Directives (option 1); or a consistent definition based on existingdecisions made by the courts under the RRA (option 2)? Which do you prefer?
We favour option 2 aswe would not want to see any undermining of the protection against harassmentalready established by case law under UK sex and race discrimination law. Boththe Employment and Race Directives state that they should not be used tojustify any regression in the level of protection existing in Member States.Again there are great benefits to be had in ensuring a single consistentdefinition across the statutes. That is why we would urge the Government toamend the SDA without waiting for the Equal Treatment Directive as this islikely to provide a superior level of protection which will therefore not haveto be amended.
It is a logical andhelpful step to incorporate case law so as to make it explicit that harassmentconstitutes discrimination. But we would want to see the detail of how thiswould be done to ensure that it is effective. And we would urge that thereshould be no requirement for a comparator in making a harassment claim. Thisunnecessarily restricts the number of people who can pursue cases of what issurely one of the most damaging and pernicious forms of discrimination both forthe victim, their colleagues and the employer whose workplace it affects.
Q8 If you prefer option 2, would you supportthe idea that Tribunals should assess whether a reasonable person would haveregarded the conduct in question as harassment?
We are alarmed thatthe Government is considering a reasonable person test. Harassment situationsare extremely distressing and arduous in terms of assembling the necessaryevidence. This proposal would create an extra hurdle which may have the effectof deterring applicants who are already facing a high degree of intimidation,and will further complicate tribunal proceedings by adding in a whole layer ofuncertainty regarding the definition of a reasonable person. There are alreadyplenty of safeguards to deter and deal with frivolous and vexatious complaints.
Chapter 7: Promoting equal treatment
Single equality commission
Thearguments for a single statutory equality commission in the longer term maywell be compelling. However, we believe that such a move should follow ratherthan precede a move to a single equality act which brings all the strands ofdiscrimination together coherently. Inthis regard we believe there is a need to monitor closely developments inNorthern Ireland including the evolving experience of the Equality Commissionfor Northern Ireland and the impact of a proposed single equality act there.Having said that, there must be a degree of caution what works for apopulation of only 1.5 million may not have wider applicability.
We havegeneral concerns about a single commission which centre on the likelyemergence of a pecking order with difficult issues or those where expertiseis lacking falling to the bottom of the pile. We are also concerned thatcommissions might be merged for solely economic reasons.
And we have specific concernsrelating to the work of the Disability Rights Commission. Having only beenestablished in April 2000, it needs time to settle in. According to the DRC, disabilitydiscrimination against disabled people is far greater than previously believedand the demand on the DRCs services in its first year had blasted originalprojections out of the water.
Any proposal, at this stage, tomerge the DRC would have an adverse impact on the disabled community whichcampaigned for so long for a commission with proper representation of disabledpeople within its structures. There is a legitimate fear that once merged intoa larger commission disability discrimination could be one of the strands whichfalls down the pecking order. If a single commission were to be created in thelonger term, the GMB would want the following commitments:
no reduction in the resourcesavailable to tackle disability discrimination;
the same level of protection for allforms of discrimination; and
real influence for disabled peopleover decisions that effect their rights and opportunities through effectiverepresentation.
In the short to medium term wesee no bar to a coherent approach and integrated advice being achieved byseparate commissions, for example through promoting closer working andco-operation. Even more important in our view is ensuring proper andsustainable funding for commissions.
Chapter 8: Advice, guidance and support
Q9 Which organisations, in your view, should beinvolved in helping to prepare practical guidance for the use of bothbusiness and individuals?
We support the list oforganisations provided in para 8.7 and would add law centres and lobby groupssuch as Stonewall, Justice and others with a special interest in the area.
Q10 What arrangements should be made available toprovide support on the new grounds of age, religion and sexualorientation?
Equality commissions
In our comments above on the move to a single equality commission westressed the importance in the short to medium term of properly fundedcommissions working together. This raises the question of where in the short tomedium term responsibility for support on the new grounds should fall.
The GMBcan see considerable merit in extending the remit of the EOC to cover sexualorientation as a result of case law which has established an overlap betweengender and sexual orientation issues in some instances. Gender and sexualorientation are related concepts.
There hasalso been case law which has established that some religious groupings areco-terminous with ethnic grouping eg Jews, while some are not eg Muslims.However, religion and belief raise some very complex issues and considerationswhich are quite separate from race and ethnicity. There is often norelationship at all between the concepts of religion and ethnicity. We can seesome justification for placing religious discrimination within the CRE, as ithas some experience in this area, but we would wish to consider this matterfurther.
And wereject the suggestion (see Equal Opportunities Review, January 2002, p 13) thatresponsibility for age discrimination should or could be placed with theDisability Rights Commission. In our view,this lacks any logical basis, as the two grounds are entirely unrelated.Until a single commission is established the GMB calls for a specific age commissionto be set up. Government policy on age is driven as much by its labourmarket agenda as by its equality agenda. Thereclearly is a need for an effectively resourced age commission to be establishedto inform, advise and enforce. Such a commission needs to raise publicawareness and understanding, particularly to ensure that age discrimination isnot seen as simply something which affects older people.
We believe that all commissions shouldhave both educational and policing roles as they complement each other. Employers who genuinely wish to changepractices will take advantage of the educational support of the commissionswhich could be a defence to discrimination claims. The policing role is equallyimportant in allowing commissions a strategic role in testing case law andhaving a stick with which to push change in key organisations or sectors.Powers to conduct formal investigations should be strengthened.
Socialdialogue
Both Directives refer to the need forMember States to promote dialogue between the social partners in fosteringequal treatment (Articles 13 Employment, and 11 Race). We believe that theGovernment could do more to meet these requirements, for example by extendingPartnership funding and support specifically to workplace projects whichpromote equality on the new grounds. Article 17 (Race) and Article 19(Employment) require Member States to compile reports every five years on theapplication of Directive legislation. We believe that the Government would begreatly assisted in its ability to compile such information if it were tointroduce compulsory equality audits for employers. We also look forward to theGovernment consulting widely before drawing up such reports.
Dissemination
We believe that providing support andguidance will be made much easier if there is a well-resourced disseminationprogramme to promote awareness of the new rights. One suggestion would beadvertising campaigns like those the Government has run on new social securitybenefits (eg WFTC) and the National Minimum Wage. An imaginative approach todistributing literature could see availability in supermarkets as well as themore traditional outlets such as CABx and law centres which rely on peoplehaving already identified a problem.
Chapter 9: Occupationalrequirements
Q11 We propose that there should be a provision ofgeneral application, allowing employers to recruit staff on the basis of agenuine occupational requirement where they can show that it is anessentially defining feature of the job on grounds of sexual orientation,religion or age. Do you agree?
In general we agree with theapproach outlined as we believe listing permissible occupational requirementsis too blunt an instrument and allows too much latitude. Instead, we believethat legislation should require that exceptions are to be strictly limited tothose which are an essentially defining feature of the job and can beobjectively justified.
Q12 We propose to delete sections 4(3) and 5 ofthe RRA. In their place, we willprovide that membership of a particular racial or ethnic group could be agenuine occupational requirement where it is an essentially defining feature ofa job. Do you agree?
We agree that the same approachneeds to be applied to the RRA.
Chapter 10: Positive action
Q13 In preparing new legislation on sexualorientation, religion and age, we propose to enable employers if they wish to take positive action on grounds comparable to those set out in the RRA. Do you agree?
The Directives allow MemberStates to maintain or adopt specific measures to prevent or compensate fordisadvantages. This does not preclude positive discrimination and we wouldtherefore argue that there is considerable scope for further and more effectiveaction beyond the rather limited provisions allowed under the RRA and SDA.These have not been used very effectively.
Following Kallanke (a positivediscrimination case) the European Commission issued a recommendation to permitcertain forms of affirmative action and this was incorporated into Article 141of the European Treaty, admittedly on a permissive rather than mandatory basis.Such measures are also proposed in Action Programmes established by the EC. Webelieve it is increasingly recognised that laws adopted 20-30 years ago are notnow sufficient to achieve equality. More needs to be done to removeinequalities, and therefore Government should allow preference to be given,where candidates are equally qualified, to those from under-represented groups.
We also call on the Government toextend the positive duty on the public sector to promote equality, containedwithin the Race Relations Amendment Act, to gender equality, disability and allthe areas now covered by the Directives. (This was one of the measures includedin Government proposals on extending the DDA Towards Inclusion referred to in Chapter 14 of the consultation).
Reservedseats on elective bodies
Thereis a further measure which we believe the Government could use this opportunity to address. GMB has hadlongstanding discussions with Government about provisions in the SDA and RRArelating to reserved seats on union elective bodies. Section 48 of the SDA and section 38 of the RRA permit tradeunions to give their women and ethnic minority members access to facilities fortraining which would help fit them for holding a post in the organisation ifthey are under-represented in such posts. The SDA also allows unions toestablish reserved seats for women.Section 49 (Trade Unions etc: Elective Bodies) allows a trade union toreserve a minimum number of seats for women where it is satisfied that theseats are needed to secure a reasonable lower limit to the number of womenserving on that body e.g. an executive council. The Race Relations Act does notcontain a provision equivalent to section 49 SDA.
Inproportion to their participation in theworkforce, black and ethnic minority workers are under-represented insenior positions in trade unions' lay structures. In itself, this underrepresentation constitutes a measure of inequality. Furthermore, it impedes progress towards tackling inequality inthe workplace. Our experience is that reserved seats on the GMB CentralExecutive Council have improved womens participation and integration.
Weask the Government to introduce into the RRA a provision equivalent to section49 of the SDA. Race reserved seats should be permitted (though not obligatory)provided a trade union is satisfied that they are needed to secure a reasonablelower limit to the number of members of one or more ethnic minorities servingon the relevant elective body.
Part 3: Strand specific issues
Chapter 11: Race: some specific issues
Q14 Section 9 of the RRA provides that racediscrimination is not an issue where seamen are recruited onto British ships atoverseas ports. In the light of theDirective, we consider that this provision is no longer appropriate. Do you agree?
Yes, we consider that there canbe no justification for such discrimination which has led to exploitation ofseaworkers from developing countries.
Q15 Sections 6, 7(4) and 36 provide exceptions tothe Act in relation to training for those who are not ordinarily resident inGB. We consider that these provisionsare no longer appropriate. Do youagree?
Yes
Q16 We propose that charities will, in appropriatecircumstances, be able to rely on the provision of genuine occupationalrequirements if there is a need to appoint individuals from a particular racialor ethnic group. Do you agree?
We can see no reason forcharities to continue to be exempt from the provisions of the RRA. They will beable to rely on the genuine occupational requirement provisions referred to inquestions 11 and 12.
Q17 When providing goods, facilities and services,charities are not currently subject to the provisions of the RRA. We propose to remedy this. We propose to retain an exception forcharities whose activities are directed at compensating for disadvantage linkedto racial or ethnic origin, so that they will not be precluded from carryingout this essential element of their work.Do you agree?
Again, we believe there shouldnot be an exemption for charities from the RRA in relation to goods, facilitiesand services. A specific exception of the kind proposed is a sensible wayforward.
Q18 Section 10 of the RRA provides thatpartnerships of fewer than six persons are currently exempt from itsprovisions. In the light of theDirective, we consider that this provision is no longer appropriate. Do you agree?
We agree that this provision isnot appropriate as there are many and varied occupations and services whichcome under this heading where individuals and organisations are experiencingdiscrimination which is unjust and damaging.
Q19 Section 22 of the RRA provides that discriminationis not unlawful when it occurs in the disposal of small dwellings. In light of the Directive, we propose toremove this exception, other than in circumstances where the disposal andmanagement of the small dwelling is in relation to a letting of an essentiallyprivate nature, when someone rents a room in a private home and sharesfacilities with the householder. Doyou agree?
Again we welcome the removal ofthe small dwellings exemption. Housing has long been an area of significant andpersistent discrimination and this loophole has been exploited for too long. Weare not convinced that the Government should be sanctioning discrimination byhouseholders in the taking of lodgers, but we recognise that to enforcenon-discrimination here would be impractical. We would recommend that thisexception is kept under review with a view to revisiting it if for examplethere is a noticeable expansion in this type of accommodation.
Chapter 12: Sexual orientation:some specific issues
Q20 Would the approaches suggested on harassmentcover the range of behaviour which gay men and lesbians, in particular, believeto be unfair discrimination? We wouldwelcome your comments.
Unlike race or sex and to somedegree religion, disability and age, sexual orientation can be the focus ofvicious gossip, rumour and innuendo which is difficult to pin down because itrests on speculation about a personsstatus, where this may be unknown. Also unique to this area is the widespreadexperience among gay, lesbian and bi-sexual workers of being the subject ofmalicious allegations. We do not propose a different test for harassment, butthere should be detailed guidance and this should also be borne in mind indrawing up the general definition of harassment. We also re-iterate the pointthat there should be no requirement for a comparator in harassment cases.
Q21 We propose to outlaw discrimination on groundsof heterosexual, homosexual or bisexual orientation. Do you agree?
We believe that it would behelpful to specify homosexual, heterosexual and bi-sexual orientation to aidunderstanding, but we propose consideration be given to an additional catch-allalong the lines of all forms of sexual orientation between consenting adults.
Legislation and guidance willhave to be drafted so as to capture perceived as well as actual sexualorientation, lifestyles, and relationships which may not have a sexualcomponent.
While we accept that genderre-assignment is covered in the SDA, it appears that indirect discrimination relatingto gender re-assignment is not covered. Government should look again to ensurethat this is addressed. One proposal would be to provide protected statussimilar to that for pregnant women for persons undertaking or consideringgender re-assignment.
We also raise the question oftransvestites who we believe must also be protected from discrimination. Wouldthey be covered under the SDA or under the proposals on sexual orientation?
Para 12.8: We are alarmedthat the Government indicates here that it may rely on the fact that theDirective is without prejudice to national laws on marital status and thebenefits dependent thereon to allow the situation to continue where it islawful to restrict pension and other benefits to married spouses. And we aredisappointed that the Government is not even seeking views on this.
It is grossly unfair to allow asituation where marital status can continue to be used as a proxy todiscriminate on the grounds of sexual orientation. The Government now has theopportunity to legislate to remove this unfairness and make it clear thatexcluding unmarried spouses is indirectly discriminatory on the grounds ofsexual orientation. This will also benefit the millions of heterosexual coupleswho live in unmarried partnerships and will remove the discriminatory effect onthe women in these partnerships who are most disadvantaged because theiraverage earning power is less than mens.
But the Government should gofurther and consider the desirability of extending equal treatment to singlepeople ie to prevent discrimination on the basis of marital and non-marital status.
Chapter 13: Religion: somespecific issues
Q22 We propose that new legislation shouldprohibit discrimination on the grounds of religion or belief in the areascovered by the Directive, but without giving any further definition of theterm, except to say that belief should be taken to refer to a religious orsimilar belief, and not political belief.Do you agree?
We accept that it should be leftto the Courts to resolve definitional issues as they arise the alternative oftrying to construct an approved list of religions or beliefs would beimpractical and too rigid. Courts have had experience of this under theEuropean Convention on Human Rights and have looked for spiritual orphilosophical conviction with a formal content.
We also assume that protectionwill be extended to the absence of religion or belief.
We are concerned that thedocument states in para 13.5 that political belief is not covered by theDirective. There is no indication in the Directive or recitals that this is thecase.
Some belief systems containpolitical content, and some political belief is based on profoundly heldphilosophical conviction. We are not sure that simply exempting politicalbelief per se would be helpful or easy to achieve. Rather it would be better totake the requirement for deeply held conviction with formal content as the basepoint.
Article 14 of the EuropeanConvention on Human Rights includes political or other opinion and the FairEmployment (N.I.) Act 1976 includes religious belief or political opinion.So, specifically exempting political belief will create anomalous situations.The Northern Ireland legislation has been interpreted so that political opiniondoes not have to be linked to religious belief, or to the Unionist/Nationalistdivide to be protected (McKay v Northern Ireland Public Service Alliance andanother, 26 October 1994 CA (NI)).
Other Member States such asFrance have interpreted the Directives as outlawing discrimination on the basisof political opinion.
We understand the sensitivitiessurrounding political belief. However, there are considerable safeguardsavailable. Article 2(5) makes clear that the Directive is without prejudice tomeasures necessary for the prevention of criminal offences, protection ofhealth and the rights and freedoms of others. Human rights law allowslimitations to be placed on the manifestation of religion or belief to protectsecurity, well-being etc. Protection under the Fair Employment and Treatment(NI) Order 1998 does not extend to political opinion supporting the use ofviolence.
Situations may arise where theholding of a particular political belief could bring a person into conflictwith the rules of an organisation. In some cases these may be covered bygenuine occupational requirements. Criteria, practices or provisions with whichsomeone of a particular political belief would find it harder to comply, are ofcourse open to the defence of objective justification.
Should it be lawful, for example,for an oil company or construction company which has attracted bad publicity onits human rights record to refuse to employ someone holding a profoundphilosophy of human rights, because the company is afraid that person may notbe loyal? Or for a merchant bank to refuse to employ someone because they havea profound belief in socialism? More difficult perhaps (certainly fororganisations like the GMB) is the example of the refusal by a public authorityto employ someone who believes in fascism. Aside from any criminal issues whichcould arise, the view one would take would depend on how the individualsbelief manifested itself, how it affected their ability to fulfil the statedduties of the job, and whether it brought them into conflict with the rules ofthe organisation.
In sum, we would ask theGovernment to look again at how to deal with political belief we are notconvinced that there is a case for a blanket exclusion.
Q23 We would welcome comments on the proposals inparagraphs 13.10 to 13.19 about organisations with an ethos based on religionor belief. Are there particular issueswhich we should cover in guidance?
Practicalissues for all employers
Although it does not appear as aseparate question on the response form, para 13.9 asks for views on what advicethe Government should offer to employers on practical issues such as diet,dress and religious observance.
The GMB has long had this sort ofissue on our bargaining agenda, reflected in many of our collective agreements.Below we set out the main issues we have focused on:
Extended leave eg for goingon pilgrimage employers should ensure that this is not refused without dueconsideration. For example, where an employer allows extended leave for otherprovisions such as career breaks it may be discriminatory not to allow this forreligious purposes. Equally requests to save annual leave and take it in blocksfor such purposes must also be carefully considered.
Prayer time this canoften be accommodated by allowing flexible use of breaks, and working hours.Again, employers must look carefully at their practices for example if theyallow employees to vary or extend lunch breaks to go to the gym, they may notbe able to justify not allowing employees to adjust breaks to observe prayers.Equally some employers receive requests to provide a separate room for prayerand they may again be vulnerable if they provide a separate room for smokers,for example
Compassionate/familyleave workplace policies and measures for fulfilling statutory obligations such asdependants leave must be examined to ensure they are sensitive to differentreligious practices such as those relating to funeral arrangements
Holy days andreligious festivals many employers who need to cover public holidays (Easterand Christmas) have adopted constructive arrangements whereby non-Christianworkers opt to work on these days in return for the right to have theequivalent leave on their holy days. Employers must seek to ensure that theymake every effort to accommodate requests for leave to observe holy days andfestivals
Food the main issues arise in relation toworkplace canteen/meal benefits. These should meet religious dietaryrequirements in response to requests from workers and provide workers with thenecessary information as to content and source. Where this is not possible, thebenefit should be replaced by appropriate compensation
Dress allreligious dress requirements should be respected unless there is a valid healthand safety objection. Adaptations to uniforms should always be made.
Religiousor belief-based organisations
Whilst we are reasonablycomfortable with the provisions in paras 13.11 and 13.12 which relate togenuine occupational requirements, we are very concerned about paras13.13 and13.14.
The implications of allowingdisciplinary action on the basis of conduct inconsistent with an organisationsethos or belief are potentially very dangerous and could be taken to legitimisediscrimination on other protectedgrounds. Can a religious organisation sack a woman who becomes pregnant outsidemarriage? Or a homosexual, even if they hold that faith?
Berrisford v Woodard Schools(Midland Division) Ltd ,1991 IRLR 247 illustrates the difficulty. A schoolmatron at a Church of England boarding school was sacked after she becamepregnant, on the grounds that she did not plan to marry. This was upheld by theEAT as not in contravention of the SDA and the EEC Equal Treatment Directive.There was however, a minority view that the dismissal was for pregnancy andtherefore automatically discriminatory.
We disagree with the proposal toallow organisations which have an ethos based on religion or belief to pursueemployment policies necessary to preserve that ethos. This is too open-ended.There must be clear provisos that these employment policies cannot be used todeny other employment rights. Furthermore there must be a requirement forproportionality in any such policies.
On the issue of which posts andorganisations should be covered (para 13.15) we believe there should beguidance to assist employers in making such considerations and this should makeclear that support and ancillary jobs should not generally be included.
Chapter 14 Disability: some specificissues
DisabilityRights Taskforce Recommendations
While the GMB welcomes thecommitment to the removal of the threshold on the number of employees and theremoval of the current occupational exemptions referred to in para 14.2 muchmore needs to be done. The GMB would encourage the Government to go beyond theminimum requirements contained in the Directive. Like many other organisationsrepresenting disabled people, the GMB is concerned at the lack of progress madesince the government published TowardsInclusion and the lack of indication as to when or how the Governmentproposes to implement it.
The GMB considers that the time isnow ripe for a Disability Bill to be introduced to implement the DisabilityRights Task Forces recommendations in full so that protection is afforded intransport and housing and extended to cover police, fire service, prisonofficers and the armed forces. We can envisage no justification for theexclusion of the armed forces from protection particularly when it is recognisedthat it is important that disabledpeoples access to civil rights applies across a comprehensive range ofemployment and occupations.
The GMB regrets that the Governmentwas unable to support Lord Ashleys Disability Discrimination (Amendment) Billwhen it received its Committee Stage in the House of Lords (6 March 2002). Inour view, Lord Ashleys Bill was a laudable attempt to address many of theoutstanding issues.
We also take this opportunity tore-emphasise our support for DisabilityRights Commission to be granted authority to take proceedings under the HumanRights Act.
.
Direct discrimination
The GMB welcomes the intention (para 14.16) to change the definition of direct discrimination in order toremove the open-ended justification defence which currently applies.
Reasonable adjustments and indirect discrimination
We believe, as the consultationdocument recognises (paras 14.7-14.10), that there is a need for greaterconsistency across the various areas of discrimination law. Therefore, the GMBconsiders that the concept of indirect discrimination should be applied to theDDA in addition to the existing duty to make reasonable adjustments. The twoconcepts are clearly different but because of the nature of disabilitydiscrimination we recommend that the duty to make reasonable adjustments shouldremain, in order to ensure the principle of non-regression which is containedin the Directive.
The concept of indirectdiscrimination should be considered as an additional strand of protection this would be of benefit because it could provide a collective and pre-emptiveapproach to discrimination. It should be possible to include the concepts ofdirect and indirect discrimination and retain the additional provision of theduty to make reasonable adjustments.
Moreover, the GMB supports theDisability Rights Commissions proposal that the duty to make reasonableadjustments in employment is made an anticipatory one, thus requiring employersto be proactive and to consider reasonable adjustments in advance rather thanresponding to a complaint by an individual. Service providers already have thisobligation under Part III of the DDA. Extending the duty to employers wouldclearly encourage good practice and promote an equality, rather than a merecompliance, approach. Such a change would meet the Governments objectives bymaking the law more coherent and simpler to understand.
Q24 Where there is no reasonable adjustment whichcould improve a disabled persons performance, and where a disabled person isthen substantially disadvantaged by the operation of the scheme itself, shouldan employer be required to:
change the scheme for theindividual perhaps paying them more for less work; or
objectively justify thediscriminatory aspect of the scheme (by showing that it has a legitimate aimand that the means of achieving the aim are appropriate and necessary)?
Where no reasonableadjustment can be had and a disabled person is then placed at a substantialdisadvantage the scheme should be changed. However, it must be acknowledgedthat a focus on the individual reinforces the existing medical model, ratherthan the social model, approach to disability discrimination. Moreover, thequestion presupposes that all performance pay schemes are individually assessedschemes whereas in practice there is a diverse range of schemes. Many of theseare of a collective nature where a groups performance is measured rather thanthat of an individual.
The GMB believes that it would be inappropriate to introduce the concept ofobjective justification to such schemes. Employers are not compelled to adoptany particular scheme. However, if they decide to introduce one they shouldbe required to ensure that it is notdiscriminatory on unlawful grounds.
In practice,discrimination is a fundamental feature of performance measurements, i.e. itdifferentiates between individuals performance on a range of factors over agiven period. It should remain lawful for this differentiation to continue.However, the schemes should be subject to a statutory duty to be transparent,objective and fairly applied. In our general experience, these requirements arenecessary as it is often the perception of a persons effectiveness which isjudged rather than their actual performance.
Q26 Where a disabled person would be substantiallydisadvantaged by the provision, rules or operation of such schemes, shouldemployers, managers and trustees of occupational pension schemes and relevantinsurance companies be required to:
makeadjustments to a scheme for the individual; or
objectively justify thediscriminatory aspect of the scheme (by showing that it has a legitimate aimand that the means of achieving that aim are appropriate and necessary)?
Occupational pension andgroup insurance schemes should be required to offer equal access to disabledworkers. Generally, where a scheme places a disabled person at a substantialdisadvantage then there should be a duty to make an adjustment.
The GMB considers thatobjective justification should only be permitted in limited circumstances. In its Final Report, the Disability RightsTask Force considered when it could be justifiable for access to benefits to berestricted. The GMB supports the DRTFs recommendation which stated
restricted access to certain (occupational)pensions benefits should be permitted for disabled people choosing to join ascheme later in their employment or re-joining a scheme, but only if:restricted access to benefits strictly limited to a specific pre-existing impairmentor condition or condition; such restrictions can be justified, e.g. based onrelevant and reliable information such as up-to-date actuarial or statisticaldata; and schemes regularly review any restrictions or impose time limits onthem.
Q28 Should qualifying bodies whether covered bythe employment or education provisions of the DDA - be able to maintainacademic and other particular standards if they can objectively justify them?
Yes.
Q29 Should qualifying bodies whether covered bythe employment or education provisions of the DDA - be required to adjust otheraspects of the relevant work of qualifying bodies (such as the means of coursedelivery and assessment like course materials, seating in exams or time limits)if it is reasonable to do so?
The GMBs position on Qualifying Bodies is thatthe general principles of the DDA should apply to them and, in particular, suchbodies should be under a duty to make reasonable adjustments. The DisabilityRights Task Force concluded that while there should be a duty to makereasonable adjustments, it would not be desirable to see a situation whereadjustments could be sought which changed the fundamental nature of thequalification. The GMB supports that conclusion with the proviso that it issubject to review.
Chapter 15Age: some specific issues
General comments
The right toprotection against age discrimination must clearly reflect the over-archingprinciple that it is unlawful to discriminate solely on grounds of age notrestricted or focused on any one age band or range. The provisions shouldextend to remove statutory age limits, eg when claiming unfair dismissal andredundancy payments.
In respect of the disability provisions covering reasonable adjustments, theDisability Rights Commission is calling for an anticipatory duty. The GMB seesmerit in a similar duty being applied to age discrimination. Employers andservice providers should be required to review existing provisions, procedures,practices, services and facilities in order to anticipate aspects ofdiscrimination. If the overall aim of the legislation is to move 'TowardsEquality and Diversity' rather than simply combat discrimination then aproactive rather than a reactive approach is necessary.
Justifications
The GMB considers that the Article 6 list of justifications of difference oftreatment on grounds of age is too widely drafted. Should the UK Governmentdecide to transpose these justifications it would simply deliver adiscriminators charter thereby allowing most forms of age discrimination tocontinue indefinitely. The GMB will be arguing for exemptions and the Article 6list of justifications to be severely limited and for the criteria to beclearly contained in a the statutory code of practice.
Pension schemes and retirement
The GMB remains opposed to age restrictions being placed on access tooccupational pension schemes. Young workers should be allowed to join pensionschemes from the first day of employment and older recruits should be allowedaccess to such schemes up until one year of reaching that scheme's normalretirement age. For example, if the normal retirement age is 65, then 64 wouldapply as an upper age limit for joining the scheme. Whether individuals applyto join their particular scheme will then be a matter of personal choice.
Employers oftencomplain that even if they wished to continue to employ people beyond the statepension age they are prevented by prohibitive insurance premia. In the GMBs view, this is why the scope ofthe legislation should be widened so that employers are not able to hide behindsuch arguments. Moreover, insurance companies would need to demonstrate withevidence rather than assumptions why a particular age group necessitatedprohibitive premia. And, in many cases an effective health & safety regimewould reduce the risk.
Q31 Have you suffered age discrimination at work,or witnessed anybody else suffering age discrimination at work?
Yes.
Q32 Please tell us about the discrimination. What form did it take; what makes you believeit was age discrimination; what effect did it have?
Agediscrimination affects older workers at all the stages of the employment cycle.The following are some examples of cases reported by GMB members and which wereincluded in our submission to the Education and Employment Select Committeesenquiry into age discrimination in employment (January 2001).
Recruitment
GMB Birmingham and West Midlands Region reported the case of a member, ahighly experienced sewing machinist, who was seeking similar employmentfollowing redundancy. The prospective employer said he was impressed bythe woman's references and her curriculum vitae. He then asked the applicanthow old she was. She replied 58 but added that she had no intention of retiringat the state retirement age. The employer concluded that she was too old forthe job. He wanted to recruit 'someone much younger in order to get more yearsout of them'.
GMB CFTA Section, which covers workers in the construction, furniture andtimber trades, reports that older workers are deliberately not recruited byconstruction companies as they are seen as being too expensive to engagecompared to younger counterparts. A view which has been confirmed by researchsupported by the European Social Fund.
Loss of employment
GMB Scotland reported the case of a member working for Manpower, theemployment agency, on a British Telecom contract. British Telecom has a blanketpolicy of not employing agency staff aged over 60. As a result, a number ofworkers were given notice to end their assignment within the BT contract.Manpower, however, do not operate a 'fixed age' policy and gave a commitment tore-deploy the staff affected within the local area.
GMB Scotland also reported cases of workers in the Rosyth Dockyard where theemployer had attempted to use the company pension scheme to fund redundanciesof those aged 60 and above, whereas the official retirement age was 65. Underthe threat of legal action the company retracted and the affected employeesremained in employment.
Promotion
GMB Southern Region report the lack of promotional opportunities for olderworkers in a leading national food and clothing supermarket chain. GMB membersthroughout the region felt that the company was guilty of age discrimination inrelation to promotions. The company appeared to have a policy of promotingyounger, less experienced and able staff, rather than older colleagues.
Q33 What do you think might help prevent suchdiscrimination happening again?
Theimplementation of effective age discrimination legislation, a statutory code ofpractice together with a well resourced age commission to inform, advise andenforce. Such a commission would be able to disseminate best practice therebyensuring that employers and the general public become aware that agediscrimination is an unacceptable practice which must be stopped.
Q34 Refusing to employ or promote someone on thegrounds of their age will be outlawed except where there are justifiablereasons for the refusal. Can it ever bejustified, for example, for an employer to specify a minimum or a maximum ageof recruitment for a job?
Yes.
Q35 If you answered yes to the last question, inwhat circumstances can this be justified?
The GMB believes thatage discrimination in employment should only be allowed in restrictedcircumstances. One of the key aims of any legislation should be the protectionof young workers. Ideally the GMB would prefer that the under 18s were infull-time education or training.
The Working Time Directive, in its preamble, states that 'Member States shouldtake appropriate measures to ensure that the working time of adolescentsreceiving school education does not adversely affect their ability to benefitfrom that education'. There is widespread evidence that 16-17 year olds arespending up to 20 hours a week working part time. It is not unusual for pupilsat this age to be in class for 26 hours with another 18 hours required fordesignated homework, a total of 44 hours per week. As a result of part timeworking homework is often ignored. The GMB has called upon the (former) DfEEand the DTI to co-ordinate policy to achieve a balance between work and studyfor adolescents at school. The departments must set priorities and develop acoherent policy in order to protect young people.
Age-related health andsafety grounds could be applied as the basis for barring young workers.However, such an exclusion would not have a general application and suchoccupations would need to be strictly defined. An initial aim would be to removeall possible hazards, by implementing risk assessments, in accordance withhealth and safety legislation. However, even allowing for such preventativemeasures there may still remain jobs which can be described as being'hazardous', e.g. chemicals. Criteria to be applied could require 'relevantwork experience', say a minimum of two years.
TheGMB does not advocate an upper age limit on health and safety grounds. Olderworkers are generally regarded as having a better safety record than youngerworkers. Even in potentially dangerous occupations or those which require ahigh degree of physical fitness, such as the police or fire services, age isnot the determining factor. Instead, the test applied is the employee's levelof fitness.
Q36 For what kind of jobs might such exceptions bejustified? For instance, are thereoccasions when, for good reason, an individual of a given age should not berecruited on the grounds of training costs?
The costs associated with training areregularly cited as a justifiable reason for the setting of an upper agerequirement for recruitment. For example, that the costs of training aredisproportionate, say, in the case of an applicant who is within a couple ofyears of the state retirement age. With the exception of occupations, such assurgeons or airline pilots where training is both extensive, covering severalyears, and expensive, this argument does not really stand up. These exceptionsshould be included in the statutory code of practice. Generally, employers cannever be certain when an employee will leave for another employer.
Q37 Recruitment schemes which focus wholly ormainly on one age group to the exclusion of others could be perceived asindirectly or directly discriminatory on grounds of age. Do you consider such schemes to bejustifiable?
Yes
Q38 If you answered yes to the last question, inwhat circumstances would you regard them as being justifiable? What are your views on graduate recruitmentschemes, for example?
Thereare good policy grounds for exempting graduate recruitment schemes. However, there could be no justification foronly recruiting young graduates and excluding older, mature, students who havesimilarly graduated.
Other initiatives such as the NHS returners scheme and the New Deal which focuson disadvantaged groups within particular age ranges should fall within Article6 justifications. The criteria applicable to such schemes would need to becontained in a statutory code of practice.
Q39 Refusing to consider somebody for promotion solelybecause of his or her age would be prohibited unless the new legislation allowsfor this to be justified. Do you thinkit should do so?
No
Q40 If you answered yes to the last question, inwhat circumstances should legislation allow such practices to bejustified? Please let us know with yourreasons.
Q41 Preventing someone from taking part intraining simply because of his or her age will be outlawed under the proposedlegislation. There is scope under theDirective to make exceptions to this general rule. An exception might, for example, include any situation in whichthe cost of training would be unreasonable when set against the amount of timethat person would spend working for the organisation. Would you support such an exception?
Yes, see answer to Q 36
Q42 Would you prevent an employee from attending atraining event because they were due to retire shortly?
No. If fixed retirement ages were to be abolished anemployer would have no idea, without expressly asking, when the worker wasgoing to leave. In practice, employers never know whether a worker intends toleave the organisation or company following a training event.
Q43 Can you think of any other circumstances whereexceptions should be made in relation to training?
No,subject to answer to question 36.
Q44 The Directive provides for narrowly definedexceptions to be made where it is requirement for a post to be occupied bysomeone of a particular age. Oneexample might be a requirement for child actors to play the parts of children in,say, a performance of Oliver. Can yousuggest other examples of work or training where age could be legitimatelyconsidered a genuine job requirement?
No. This demonstrates that, inpractice, age discrimination operates differently form other forms ofdiscrimination.
Q45 Legislation outlawing age discrimination atwork would disallow pay or non-pay benefits based wholly or partly onchronological age. Again, there couldbe justifiable exceptions. It ispossible that benefits related solely to length of service (for example, anextra 5 days holiday once you have been working for the company for 10 years)might be regarded as indirectly discriminatory. Do you know of any pay or non-pay practices that might beconsidered discriminatory for either younger or older workers? What are they? Are there sound reasons to justify continuing these practices?
Thereneeds to be a distinction made between age related and service related pay andbenefits. Service related benefits can be justified, though not on the groundsof loyalty to the company or organisation whereas on the whole age relatedrewards cannot be. Although age related scales have almost completelyvanished it is still fundamentally unfair to pay people less simply because oftheir age. Having said that a school leaver would not expect to be paid thesame rate for the job as some-one who had been working in the company ororganisation for some time. This will require payment systems to have regard toa range of factors, e.g. skills, relevant experience and competencies as wellas providing appropriate training while applying a training rate for the job.This provides another example which justifies a statutory code of practice.
Wewould also point out that we believe that the age rates in the National MinimumWage are discriminatory under the terms of the Directive and cannot bejustified. We have long campaigned on this issue and we urge the Government totake this opportunity to abolish them.
Q46 Annual incremental pay might be regarded as ajustified exception to reflect experience and reward loyalty to anemployer. Do you agree?
Yes. However, it would be wrong toassume that longer serving employees are more loyal than recent recruits.
Q47 At present, many employers offer attractivevoluntary redundancy packages based on age or length of service. Can this morefavourable treatment be justified?
No.
Q48 If you answered yes to the last question, inwhat circumstances can this more favourable treatment be justified?
Similarto the Question 45 above, service related packages can be justified whereas agerelated ones cannot.
Q49 Do you think employers should be able torequire people to retire at a certain age?
No. It is difficult to see how fixedretirement ages can co-exist with effective age discrimination legislation. TheTowards Equality and Diversity consultation document explains that equality isimportant and that everyone is encouraged to realise their full potential. Later, it claims to want to seek greatercoherence across the different strands. Having said that why should some-one berequired to 'retire' at an arbitrary age. If, in addressing this question, wesubstitute say, sex or race for age, the suggestion immediately causesoffence.
People shouldhave the choice either to work on or to retire. In the light of current pensiondevelopments, for many the choice will not be a real one. But a commitment toan equality agenda cannot deliver on age discrimination without the abandonmentof fixed retirement ages.
Q51 What concerns, if any, do you have aboutcurrent retirement practices?
Current practices are wasteful both at a company leveland at a national level. The national economy is reckoned to loose 31bn perannum because of ageist employment practices. Clearly, that cannot be allowedto continue. With the UKs appalling skills shortages it is an absolute scandalthat highly skilled and experienced are shed from the workforce on the basis oftheir age.
The businesscase for a diverse workforce has been well argued and presented by others, mostnotably the Employers Forum on Age as well as the Government. The GMB whilegenerally supporting these arguments asks why it is taking employers so long tosee the benefits. But there is a forceful moral case against discriminationbased on age. Workers should not be thrown onto, or left on, the scrap heapjust because they have reached a particular age.
Q52 In your opinion, what would be the advantagesand disadvantages if there were no fixed retirement age?
There are supposedly good reasons forkeeping fixed retirement ages. It facilitates workplace planning by employers;allows planning of pensions; eliminates promotion blockages of younger people,including those from under-represented groups and permits, allegedly, a dignifiedend to the employment relationship.
However, many see these considerationsas being outweighed by the fundamental injustice of depriving some-one of theirjob, regardless of their ability, on the basis of reaching a chronological age.Indeed, it is perverse that in order to protect a persons dignity we deny themthe right to protection from discrimination.
The are numerous advantages associatedwith the removal of fixed retirement ages. These are, potentially, of majorimportance not just to the individuals who would benefit from such alegislative change but also, as we have already stated, to the nationaleconomy.
A general mandatory retirement agewould severely undermine any protection by age discrimination legislationdirectly, and indirectly by making it much easier to justify not recruiting orpromoting or training people because they were nearing that retirement age.From an equality perspective people should not be forced out of work simply onthe grounds of reaching 60 or 65.
Clearly, there is confusion (andperhaps fear) that the abolition of fixed retirement ages will adversely affectaccess to pensions, e.g. that people will believe that they will have to worklonger (such as the suggestion by IPPR that the state pension age be raised to67). The two issues, retirement and pensions need to be distinguished and keptas far apart as possible.
Additional question
Q54 The purpose of legislation is to set minimumstandards. But we want to look at otherways of encouraging many more businesses to adopt the standards of thebest. Please let us know about policieswhich you believe work particularly well and bring benefits for bothindividuals and business.
We welcome the Governments intentionto consider best practice. We regret that due to time constraints we are notcurrently able to provide detailed examples of policies and agreements which wehave negotiated in the areas covered by the consultation. However, we would bedelighted to provide these at a later date.