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The actual shape of a 'Code of Practice' and a comparative piece of legislation is often similar. The nuances are much the same. The difference is the force of law. In the case of a 'Code' the employer has a choice. They either accept and practice the Code, or they don't. There is no pressure to comply. Government relies upon its power of persuasion and the goodwill of the employer to make the 'guidelines' work.
In another part of this website we explained how the American Administration tried for years to make 'Codes of Practice' work before it resorted to legislation. True to form, instead of learning from the American experience, the UK Government determined to follow its same erroneous course.
Recently the sixth and last attempt at a 'code of practice' came into being, though hopelessly flawed. I say 6th, meaning the sixth attempt at agreeing a Code of Practice by a British Government in the last fourteen years. The present one is currently lying literally dead in the water with even the perpetrators giving it scant notice. It's promised evaluation wasn't seen, so presumably wasn't done. This was probably due to the EU imposition of intent. However it was commonly anticipated that the 'Codes' evaluation would be very negative.
The implication is that this government will now be adopting basically the same criteria set out in the 'Code' but encapsulating it into 'law'. The 'law' of course makes it compulsory for all and carries the weight of sanctions which can be used against those who disregard it. Don't hold your breath!
So if the basic principles are the same, what are these principles? These basic principles were first set out by CAADE in a document published early in 1994 and remain the same today. They embrace the following basic areas. :-
Recruitment and the Recruitment Process, Training and Education,
Promotion, Redundancy and Early Retirement, Retirement at 60/65 and
Pension Schemes and other Financial Inducements.
THE RECRUITMENT PROCESS
Everybody who knows anything at all about 'age discrimination' will be aware that the Recruitment Process is the stage where most complaints emanate. Advertising in the media is a most obvious way of showing prejudice if you are inclined to do so. 'Must be under 28', 'between 28 and 32', 'nobody over the age of 30 need apply'. We've all seen them. Though not as obvious today, companies still discriminate in advertisements 'person wanted to join young company' implies the obvious These advertisements are offensive and unnecessary and thank goodness, through pressure, are now not seen quite as often.
However, many employers still transfer that prejudice into the recruitment process. Unknown to an applicant, all applications for a job from people over the age of 45 could be being automatically binned. This will be outlawed. The cynics amongst would say 'how will we know?' - Be sure! A persistent inclination against a certain age range will stand out like a sore thumb and will most certainly be outlawed. Remember, nearly a HALF of the workforce is over 45. If a company has an imbalance of staff it will stand out in its personnel audit and be considered when sanctions are asked for. It is not as difficult to prove as most deliberately prejudiced employers think.
TRAINING, EDUCATION
The majority of employers are good employers, let there be no doubt of that. However many companies in both the Public and Private sectors are guilty of passing over training opportunities to their staff because of their age. 'Return on investment' is the usual excuse. So you are in your 'fifties and are still ambitious, why shouldn't you be? You apply for an advancement course and you are refused because you are considered too old. .
The Company looks at you and considers the return it will get on its investment of retraining you. Looking purely at your age, they consider they may be justified in assuming that as you may only (possibly) only 5-10 years maximum away from retirement they won't get good value from their expenditure. The truth is that older people are more loyal than younger people and stay with their firms longer. You could make the decision of training up someone of 30-35 and low and behold, they leave and join your competitor. It doesn't make sense does it? In future it would be considered as discrimination.
Government are advocates of 'Lifelong Learning' and one would hope they would give a lead on this. They too will have to watch their step as currently only between 7% and 9% of older public employees receive any government training.
PROMOTION
Much of what has been said above applies to the process of promotion and upgrading. It is not uncommon when you have been doing the same job for ten years or so you can become stale. This is not to be confused with 'unable' or 'inefficient'. Change that persons job, re-vitalise your employee, whilst retaining those ten years of company experience and know-how. Side-tracking them because of their age will be against the law. This is a basic of good management. The same good management applies -- at any age!
REDUNDANCY / EARLY RETIREMENT
However this is disguised, it is usually practiced with prejudice against older employees. Ask any employer and they will claim that when a programme of redundancy is put into operation they are not looking at age as a criteria. It is not surprising however that the 'enhanced packages' usually put forward are designed to attract older employees. They will always deny a hidden agenda. Of course what is 'unsaid' is that without 'enhanced packages' early retirement and redundancy would be totally unattractive to older employees because of the 'hidden'pension losses. Take early retirement at 50 and (a) you are highly unlikely to get another comparable job again and (b) if you stop working altogether, you are likely to be retired for longer than you ever worked. And (c) you will receive a very much reduced pension. Now look at your 'enhanced packages' with that in mind and they don't look quite as attractive. Socially, early retirement, with ultimate dependency on benefits is a huge drain on the public purse and none too good for your health. Activity and a purpose in life are essential if you have any plans to reach a ripe old age.
Redundancy and Early Retirement plans that are designed to thin out the numbers by targeting less 'political' older employees in companies, will be frowned upon and certainly subject to close inspection from a sanction viewpoint.
RETIREMENT AT 60 / 65
At 59 years and six months, I am a valued employee. At 60 years and one day, I am not. I have always had difficulty in accepting that any civilised society can give me a sensible explanation for this. History apart, there is no sensible reason why we, as a developed country, in the twenty-first century, should still embrace this ridiculous practice. As a counselor I deal with more complaints on this subject than any other. I cannot make sense of it, can you?
For employer or employee, a fixed retirement age makes no sense whatsoever. Whereas a 'flexible' period of retirement has a lot going for it. If over a period of say ten years from 60-70 an employee gradually reduced their working hours and at the same time a newer employee was gradually allowed to increase their working hours, replacing the retiree, both employers and employees benefit. No social and company skills are lost and a fluid and painless retirement has been achieved. Age should never be a reason for retirement and this must be a sanctionable piece of ADE law.
PENSION AND FINANCIAL INDUCEMENT SCHEMES
The majority of Company Pension Schemes in the UK are of the 'Final Pay' type. This means that the pension payable as broadly speaking based on a rate determined by an employee's pay in the final year of employment. This usually takes the form of a contract between employer and employee at the commencement of employment. In early years they are very cheap, in later years they are very expensive, especially to the employer.
The inference is, given the choice, an employer will employ a cheaper employee every time. Pension-wise it is cheaper to employ a 40 year old than a 50 year old, bearing in mind the salary is the same. Also in early retirement (breaking the contract early) a pension scheme of this type can be worth very little, hence the need for 'enhancements'. In consequence these plans are considered extremely discriminatory. By necessity they must also be a 'good' investment for the company - they cost money to run. Unfortunately when Interest Rates are low, Final Pay type Pension Schemes become less popular with employers too.
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