Article

Older workers andextended workforceparticipation: Movingbeyond the ‘barriers towork’ approach

Therese MacDermott

AbstractMany countries have responded to the prevailing fiscal and demographic challenges byintroducing measures to extend the workforce participation of older workers. Thispaper assesses the type of measures commonly utilized to extend labour force partic-ipation, using examples of legislative reforms and social policy initiatives in Australia, theUK and other EU member states. It argues that these measures are principally aimed atmandating or incentivising extended labour force participation, and lack a focus onachieving substantive outcomes for older workers. This paper explores the type ofmeasures necessary to move beyond a ‘barriers to work’ approach, with a particularemphasis on promoting and sustaining the inclusion of older workers through strategiesthat encourage employer engagement in ascertaining and addressing structural impedi-ments facing older workers, that facilitate flexible work practices and that implement areasonable adjustments approach.

KeywordsAge, workforce participation, discrimination

Macquarie Law School, Macquarie University, Australia

Corresponding author:Therese MacDermott, Macquarie Law School, Macquarie University, NSW 2109, Australia.Email: therese.macdermott@mq.edu.au

International Journal ofDiscrimination and the Law

2014, Vol. 14(2) 83–98ª The Author(s) 2014

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DOI: 10.1177/1358229113520211jdi.sagepub.com

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Introduction

Increased longevity and declining fertility shape the demographic landscape in many

developed countries. An ageing population puts pressure on national pensions, social

security, health care and aged care systems. Declining fertility threatens efforts to main-

tain a broad tax base of working persons to meet these future costs, and generates asso-

ciated concerns regarding skills shortages and competition for such labour. Over the last

decade many countries have sought to respond to these challenges by introducing a range

of measures to extend the workforce participation of older workers, with a view to reduc-

ing reliance on pensions and social security entitlements and to prolonging taxation con-

tributions. While these measures are premised on the expectation that older workers will

be able to extend their workforce participation, there is no guarantee that employers

share this vision or will actively seek to employ or retain older workers.

There has been slow progress made in increasing participation rates of older workers

(Marin and Zaidi, 2007). Although employment rates for older workers have increased in

the last decade, the figures across all EU member states show that only three out of 10 in

the 60–64 age cohort are in employment (European Foundation for the Improvement of

Living and Working Conditions, 2012). Despite the clear fiscal and demographic logic of

keeping workers engaged with the paid workforce for longer, the pervasive negative

stereotypes about the employability of older workers and concerns about their productive

capacity have not shifted to match the new policy agenda (Dadl, 2012; Patrickson and

Ranzijin, 2005: 730). There is also the related argument that workers themselves need

to accept the necessity of working longer (European Foundation for the Improvement

of Living and Working Conditions, 2013: 42).

Cultural norms and community expectations about the appropriate timing of an end

to workforce participation have often been constructed around pensionable age or man-

datory retirement age. Changing those norms and expectations involves a range of dif-

ferent ‘push’ and ‘pull’ factors. Prospective retirement income is clearly a highly

influential factor, as well as health and physical capacity, working conditions and job

satisfaction. Setting aside these individual preferences, working longer becomes a

necessity where access to pensions and other retirement income is denied until an indi-

vidual attains an extended age-based eligibility criteria. Alternatively, a more nuanced

approach is one that provides incentives that make working longer more attractive

financially, or imposes financial disincentives to early retirement. However, while

these approaches involve implementing a requirement or incentive for working longer,

they do not encompass a strategy to ensure that opportunities to work actually exist or

remain for older workers.

This paper begins with considering why the attribute of age presents particular chal-

lenges for workplace regulation. It then assesses the type of measures commonly

employed in developed countries1 to bring about extended labour force participation,

in particular using examples of legislative reforms and social policy initiatives in Aus-

tralia, the UK and other EU member states. This paper identifies the principal focus

of these measures as being on overcoming or removing ‘barriers to work,’ without due

regard to the need to ensure that opportunities for extended workforce participation actu-

ally exist. It also examines the limitations of pursing rights for older workers through an

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equality framework. It argues that the shortfalls in the emerging regulatory framework

common to many developed countries are a consequence of the priority given to eco-

nomic and fiscal considerations and a lack of focus on achieving substantive outcomes

for older workers. It also argues that the constrained nature of the equality protections

applicable to discrimination against older workers limits the effectiveness of the overall

regulatory approach. This paper concludes with a critique of the type of measures nec-

essary to move beyond a ‘barriers to work’ approach towards a strategy that aims to pro-

mote and sustain the inclusion of older workers.

The attribute of ‘age’

National legislation prohibiting age-based discrimination at work is relatively common,

particularly in EU member states since the adoption of the EU Employment Equality

Directive (Meenan, 2007: 59). Relevant International Labour Organization (ILO) con-

ventions and associated recommendations also provide a basis for proscribing age-

related discriminatory treatment at work.2 Despite this framework, non-discrimination

principles are not often perceived as an adequate motivational factor for employers to

deal systemically with age discrimination or to implement pro-active measures. Dealing

with workplace age-related issues is more likely to be portrayed as an ‘‘economic labour

market issue, rather than an equality issue’’ (O’Cinneide, 2003: 199–200). One academic

study concluded that the approach of some justices in the US was indicative of a view of

age discrimination ‘‘as less salient a societal problem than other forms of bias’’ (Bisom-

Rapp et al., 2011: 109). Age has an aspect of universalism that does not directly affect

other attributes covered by equality legislation, whereby all individuals are likely to

experience each age and perceived ‘life-cycle stage.’ In addition, chronological age is

utilized in allocating and defining certain rights and responsibilities in specified circum-

stances; such as eligibility for voting, marriage and consent. This in turn provides some

validation for the use of age as a convenient shortcut in assessing individual capacity or

suitability. As a consequence, equality legislation as it applies to age discrimination is

often qualified by an extensive range of specific exceptions that are not present with

respect to other attributes.

Tough economic circumstances do little to advance the cause of redressing workplace

age discrimination, in particular as it applies to older workers. In times of economic

uncertainty and high youth unemployment there is additional pressure to favour younger

workers over an older generation,3 and retaining and sustaining older workers becomes

less of a priority (Parry and Harris, 2011: 6). In such circumstances the notion of ‘inter-

generational equity’ underpins the argument that older workers need to make room for

younger colleagues. This argument is fuelled by perceptions that older workers have had

a long period of workforce engagement and therefore should make way for younger

workers, and that institutions need ‘new blood.’ In addition, older workers as a cohort

are regularly typecast are not well suited to the dynamic nature of the modern workplace

in which technological innovation and creativity predominate (Friedman, 2003: 191).

There is also a misconception that if older workers remain in employment, there are

fewer jobs for younger people (Bisom-Rapp and Sargeant, 2013); which is often referred

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to as the ‘‘lump of labor fallacy’’ (European Foundation for the Improvement of Living

and Working Conditions, 2013: 8; OECD, 2011: 76; Walker, 2000).

During the recent recession in Europe, employment rates for older workers appear

to have been less affected than for younger workers (Beck, 2013: 259), although older

workers were more likely to find themselves in non-standard forms of employment

(European Foundation for the Improvement of Living and Working Conditions,

2012: 1). This is consistent with an academic study conducted on how older workers

fared in Australia, the UK and the US during the economic recession. It found that,

while actual participation rates may not have declined significantly for older workers,

forms of non-standard employment increased, thereby affecting the quality of work for

older workers (Bisom-Rapp et al., 2011). This study concluded that ‘‘for many,

employment has become more fragile, inconstant, and insecure’’ and this in turn

impacted on workers’ capacity to plan for a ‘‘dignified retirement’’ (Bisom-Rapp

et al., 2011: 48). Consequently, while the poor economic conditions in Europe of late

may have had a greater impact on employment rates for younger workers, they have

also contributed to further vulnerability for older workers in the form of more non-

standard employment arrangements.

Age also has a clear gender dimension. Challenging age restrictions in employment

has been characterized, at least in the US context, as the domain of white middle-

class men (Friedman, 2003: 175–182). Further, it has been suggested that women are

more likely to ‘normalize’ the ageism they are subject to, based on their experiences

of gender-based discrimination (Thornton and Luker, 2010: 161). In Europe there has

been a narrowing of the gender gap for participation of older workers, but this varies

on a country-to-country basis (European Foundation for the Improvement of Living and

Working Conditions, 2012). The time that women spend out of the paid workforce, or in

a reduced form, affects employment opportunities, contributions to retirement savings

and pay equity. The caring responsibilities that many women have for young children

are often revisited in later life in the form of responsibilities for parents, partners or chil-

dren with disabilities in need of care and support. Decision-making by older women with

respect to maintaining or remaining in paid employment is also seen as more likely to be

affected by their domestic circumstances (Loretto and Vickerstaff, 2013; Vickerstaff

et al., 2008).

Extending labour force participation through pension reforms

One of the bluntest instruments for influencing the timing of an end to workforce partic-

ipation is to simply change age-based eligibility for pensions. This has the dual conse-

quence of delaying responsibility for paying pension entitlements and extending

the period of taxation contribution. The ageing of populations presents challenges for the

long-term sustainability of pension schemes in many countries (European Commission,

2012). Recent financial instabilities in Europe have put additional pressure on the ade-

quacy of such schemes. Many countries are currently implementing or actively contem-

plating a change in the pension eligibility age that will move incrementally from 65 to 67

over an extended phase-in period. There is related pressure to raise the preservation age

for access to occupational pension schemes.

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Other types of reforms include the phasing out of pension schemes that rely solely on

length of service and are not age-dependent. In addition, the capacity to access early

retirement schemes has been restricted in many countries, although it still remains as

a practice in some countries as a tool in implementing restructuring and redundancies

(European Foundation for the Improvement of Living and Working Conditions, 2013:

10). In addition, the adverse taxation treatment of early retirement payments can dimin-

ish the appeal of such schemes. Rules relating to social welfare entitlements can also be

tightened to limit the capacity of individuals to access sickness or disability benefits as a

form of substitute payment prior to reaching the age pension threshold. Some countries

have taken steps to try and reduce the fiscal burden of their pension schemes by changing

from defined benefit to defined contribution, as well as encouraging a change in the mix

of public pensions and privately funded occupational pension schemes.

Rather than imposing disincentives, an alternative reform is one that creates posi-

tive financial incentives for extended workforce participation. Relaxing the rules on

access to pensions, occupational pensions schemes and benefits payments, while main-

taining some form of employment, is such an example. Some schemes reward delaying

retirement beyond the eligibility age with increased benefits (Marin and Zaidi, 2007:

77). Taxation systems can also provide favourable tax treatment for personal retire-

ment savings or tax deductibility for additional voluntary contributions to occupational

pension schemes.

However, these approaches do not address the vexing question of whether the man-

dated or desired extended workforce participation will be available to older workers.

Denying access to pension entitlements until the new age criterion is met merely imposes

a compulsion to work longer, rather than a tangible opportunity for continuing workforce

participation. Without adequate attention to generating those opportunities there is the

potential for increased dependence on forms of social welfare and the risk of poverty for

older workers not able to access retirement income. While equality legislation aims to

create an equality of opportunity for older workers in seeking or retaining such opportu-

nities for continuing workforce participation, in its current manifestation it is of limited

utility, as discussed below.

Facilitating extended labour force participation through equality protections

The proscription of age-based discrimination in employment is seen as a necessary pre-

requisite for extending the workforce participation of older workers in many countries,

and national legislation prohibiting age-based discrimination at work is relatively com-

mon. Additional protection can also be provided against discriminatory dismissals or

redundancy arrangements through other forms of employment protection legislation.

However, there is evidence indicating that some countries in Europe still permit employers

to terminate employment on notice at a nominated age (European Commission, 2011: 6).

An equality rights framework can serve both a normative function as well as provid-

ing a discrete avenue for redressing individual complaints. In common with most

complaints-based equality legislation, pursuing specific incidences of workplace age dis-

crimination is challenging. For example, research on this subject in Australia indicates

that not one case has been successfully litigated under the national age discrimination

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legislation, attributable to a range of factors including shortcomings of the legislative

scheme, limitations in access to justice, an over-emphasis on conciliated outcomes and

difficulties of proof (MacDermott, 2013). In addition, remedies that are focused on com-

pensation rather than reinstatement offer less utility to older workers, for whom the loss

of a job results in a longer-than-average period of unemployment. In this context, the

capacity for strategic enforcement by a well-resourced regulatory agency is highly

significant.

Unlike other relevant attributes, the protection provided against age discrimination is

specifically qualified in many national systems by the concepts of ‘justifiability’ or ‘rea-

sonableness.’ Under the terms of the relevant European Directive,4 national legislative

schemes can provide for differences in treatment on the grounds of age that are objec-

tively and reasonably justified by a legitimate aim, and where the means adopted is con-

sidered appropriate and necessary. The interpretation of justification in the context of age

discrimination has been characterized as not necessitating exceptional circumstances,

and permitting countries to use a broader range of legitimate aims that are not confined

to matters of public interest (European Commission, 2011: 5). European case law indi-

cates that states are not required to draw up a list of differences in treatment that might be

justified.5 The aims of a fair distribution of employment opportunities and facilitating

younger people finding work, particularly where there is high youth unemployment, are

potentially justifiable.6 The jurisprudence in this area acknowledges intergenerational

fairness and dignity as legitimate aims.

In the UK, what is encompassed by the concepts of intergenerational fairness and

dignity in the context of forced retirement was considered in Seldon v Clarkson Wright

and Jakes (A Partnership). The Supreme Court stated that ‘‘intergenerational fairness’’

can include ‘‘facilitating access to employment by young people,’’ ‘‘enabling older peo-

ple to remain in the workforce,’’ ‘‘sharing limited opportunities to work in a particular

profession fairly between the generations’’ and ‘‘promoting diversity.’’ The Court also

concluded this extended to ‘‘avoiding the need to dismiss older workers on the grounds

of incapacity or underperformance, thus preserving their dignity and avoiding humilia-

tion,’’ and ‘‘avoiding the need for costly and divisive disputes about capacity or under-

performance.’’ However, the Court did go on to consider the need for this to be viewed in

the context of the particular employment, and that the means chosen must be appropriate.

The matter was then sent back to the Tribunal, which found that the forced retirement

was justified as a proportionate means of achieving workforce planning, ensuring that

partnership opportunities existed for junior staff within a reasonable timeframe, and cur-

tailing the need to remove partners through performance management.7 The Tribunal

viewed the retirement age as providing an acceptable balance between the needs of the

firm and the individual partner, and one that Seldon had agreed to in advance within the

terms of the partnership agreement. Ironically, little dignity seemed to be preserved after

years of litigation over the issue. Along similar lines, evidence from the US indicates that

the reasonableness of a policy or practice that adversely impacts on the basis of age is

more likely to be found to be justifiable than in the case of any other ground (Bisom-

Rapp et al., 2011: 107–109).

The notion of the justifiable sharing of employment opportunities between the gen-

erations, and avoiding undignified disputes over capacity and performance of older

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workers, are strong themes running through much of the relevant case law. As a con-

sequence of this approach the effectiveness of prohibitions on age discrimination is

limited in terms of protecting older workers, particularly in relation to labour market

policies and initiatives that seek to create job opportunities for younger workers. This

is exacerbated where the proportionality question is focused on the application of a

particular rule or retirement practice in broad terms, rather than as it applies to the par-

ticular individual in question and his or her need or desire to work longer (Vickers and

Manfredi, 2013). The capacity of equality legislation to promote and sustain the

employment of older workers is as a consequence constrained by the justifiability of

various policies and practices that override the equality guarantee otherwise available

to individual older workers.

Prohibiting mandatory retirement

One particular form of workplace age discrimination that has been specifically targeted

in many countries is mandatory retirement at a specified age. International comparisons

indicate that abolishing mandatory retirement age is an increasing common practice

(Wood et al., 2010), although some countries retain fixed age limitation for certain des-

ignated categories of employment, such as judicial or military personnel. The abolition

of mandatory retirement reflects a mix of motives; including addressing demographic

change, ensuring the fiscal sustainability of pension system and on-going labour supply,

as well as concerns for equality of opportunity and fairness (see, for example, the UK’s

Department for Business Innovation and Skills and Department for Work and Pensions,

2010). The dignity argument has been invoked in this context to argue that a retirement

age allows for a dignified departure at a fixed age, rather than the need to address declin-

ing competence and capacity. But such an argument is premised on the assumption that

such a decline is inevitable and universal, thereby reinforcing the prevailing negative

stereotypes (Bisom-Rapp and Sargeant, 2013; Sargent, 2010: 250). In addition, it sug-

gests that all performance management systems are inherently flawed. It also does little

to advance the dignity of those who are ready, willing and able to work beyond that fixed

age. In fact, an approach based on dignity should be premised on individual assessment

and on equal concern and respect for the individual (Alon-Shenker, 2012). Finally, it

ignores the possibility of an alternative approach based on responding to or accommo-

dating any limitations through reasonable adjustments that would enable an older worker

to perform the inherent requirements of the job in question.

The combination of outlawing mandatory retirement and setting a threshold pension

age means that voluntary workforce participation is permitted beyond the age pension

threshold. Like other initiatives in this area it creates the expectation of continuing

employment, but does not address how to facilitate the retention and hiring of older

workers in this new environment. While there are examples of good age management

policies and practices in some European enterprises and elsewhere (Taylor, 2006), there

is a need to convince a broader range of employers that older workers are suited to con-

temporary work practices and demands, and that an age-diverse workforce is more sus-

tainable in the current demographic context (European Foundation for the Improvement

of Living and Working Conditions, 2012: 9).

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Transcending barriers to work

In the preceding sections, this paper has dealt with how legislation and social policy can

be designed to make working longer a necessity, a practical reality or an attractive

option. However, the fact that these legislative changes and policies are premised on

extended workforce participation by older workers does not necessarily mean that

employers will adjust their recruitment and retention strategies accordingly (Patrickson

and Ranzijin, 2005: 733). The demographic realities of an ageing population inevitably

puts pressure on employers to rethink their views about older workers, and social policies

are increasingly highlighting the business case for embracing an older workforce. An

age-diverse workforce is presented as a way of ensuring intergenerational cohesion,

knowledge transfer and succession planning (International Labour Organization, 2009:

8). However, it is interesting to note that the rights-based perspective of ‘‘facilitat[ing]

equal participation of all in society, based on equal concern and respect for the dignity

of each individual’’ (Fredman, 2003: 21), is rarely the rationale employed.

What influences a particular worker to formally disengage from workforce participa-

tion is highly variable, and dependent to a large degree on individual circumstances. The

common determinants include financial security, health and disability and caring respon-

sibilities. Added to these are factors such as working conditions, employers’ reluctance

to employ or retain older workers, pervasive negative attitudes to older workers in the

workplace, and the consequent demoralization of older workers (European Foundation

for the Improvement of Living and Working Conditions, 2013: 23; Marin and Zaidi,

2007: 81–82). This can be compounded by external practices of organizations such as

recruitment agencies that perform a gatekeeping function in preventing older workers

accessing employment opportunities. And whether that disengagement is preceded by

a phased transition, a reduction in responsibilities or a period of non-standard employ-

ment also varies. An Australia study in this area concluded that ‘‘most workers would

prefer to retire early, while few are able to work as long as they expect or need to work’’

(National Seniors Australia, 2009).

One obvious approach is for programs to directly fund or subsidize the employment of

unemployed older workers (European Foundation for the Improvement of Living and

Working Conditions, 2013: 24). Alternatively, more indirect incentives can be offered

to employers for employing older workers through tax credits or offsets (Marin and

Zaidi, 2007: 84). While these measures can have the immediate effect of creating job

opportunities for older workers, they can compound negative perceptions about older

workers by creating the impression that ‘‘there must be a problem with older workers

otherwise an employer would not need to be paid to employ them’’ (Patrickson and Ran-

zijn, 2005: 37). Moreover, it is necessary to look closely at the retention of such workers

and their long-term job prospects.

Equality legislation clearly plays an integral role in providing older workers with an

avenue for redress, and its supporting educational and promotional campaigns can over

the long term contribute to bringing about attitudinal change to the employment and

retention of older workers. However, other targeted measures are required to move from

an expectation of extended workforce participation for older workers to actively facili-

tating such participation. The following discussion examined three approaches that seek

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to move beyond the ‘barriers to work’ approach through strategies that focus on how an

organization can ascertain and address structural impediments within its workforce, the

potential for flexible work practices to facilitate extended workforce participation, and

the need for a reasonable adjustments approach to the attribute of age.

An employment equity approach

A significant problem with ascertaining whether discrimination in employment is

impacting on the employment opportunities of older workers is having reliable employ-

ment data to work with (Ghosheh, 2008). An assessment of the existing and potential

employment opportunities of older workers necessitates at the very least data on the age

profile of the workforce, the forms of employment engaged in by older workers and their

working conditions. It also requires engagement in workforce planning to determine

future workforce needs, likely workforce profiles and opportunities for varying forms

of employment. Whether this data is available is dependent on the reporting obligations

imposed on, or voluntarily undertaken by, employers.

One source of such information is where equal employment opportunity (EEO) mechan-

isms exist for reporting on workplace practices and procedures. While reporting on the

gender composition of the workforce may be a relatively common practice, few countries

have adopted an employment equity approach with respect to other criteria. In Canada, the

Employment Equity Act8 mandates the use of a scheme that encompasses women, Aboriginal

peoples, persons with disabilities and members of visible minorities. Northern Ireland uses an

affirmative action approach that monitors labour force segregation on the basis of religious

affiliation, is based on reviews of workplace composition, and has the capacity to require that

remedial action be taken.9 In the Australian context, the advocacy body National Seniors

Australia, drawing comparisons to recent legislative developments on workplace gender

equity, has questioned why no equivalent reporting requirements are imposed with respect

to the proportion of older workers and the actions by employers to enhance employment

opportunities for older workers (National Seniors Australia, 2009: 22).

Many are put off the idea of an employment equity approach where it takes the form

of positive action that sets targets or quotas for the employment of specific groups.

However, the prevailing regulatory model tends to favour a ‘light touch’ approach

that focuses on employers reviewing and reporting on their employment practices

with respect to recruitment, training, promotion and redundancy, with an escalation to

auditing or contract compliance sanctions only for those organizations where under-

representation continues to be problematic (see Hepple et al., 2000: 64–72). In the

context of older workers, public and private sector employers, whose workforce meets

a certain threshold number of employees, could be required to review and report on the

composition of their workforce in terms of age groupings, the associated employment

status and working conditions. In addition, the process could focus specifically on

recruitment and redundancy practices with respect to older workers, and their access

to training and promotion. In this way the process would be designed to identify struc-

tural barriers impeding the opportunities of older workers, as a means of determining the

necessary steps to address such barriers. Such a process has the potential to promote

transparency around the employment practices pertaining to older workers and to

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facilitate the development of targeted measures to enhance opportunities for older work-

ers. It is premised on the view that employers once presented with the information will

take the opportunity to reflect and improve on their practices, which may be overly opti-

mistic for the full spectrum of employers. But as a form of light-touch regulation, it is

also premised on the understanding that agency monitoring and oversight is involved,

and that the absence of improved outcomes would necessitate a more rigorous compli-

ance response (McCrudden, 2007; McCrudden et al., 2009).

As an alternative to approaching employment equity through general obligations, col-

lective bargaining arrangements can be harnessed to achieving greater transparency

regarding employment practices and to facilitate measures to enhance employment

opportunities for older workers. An example of this is the obligation imposed on enter-

prises in France that have over 50 employees to enter into collective agreements that

made provision for action plans on the employment of older workers, with non-

compliance subject to a financial penalty (Gineste, 2012: 4). Such agreements must set

objectives for recruitment and on-going employment, specify measures for achieving

these objectives and provide some form of monitoring mechanism. The evidence sug-

gests that by 2010 80% of eligible companies were covered by such agreements, but that

the economic crisis has lessened the priority given to this issue (European Foundation for

the Improvement of Living and Working Conditions, 2013: 16–17). A variant on this

approach is the example of a collective agreement concluded in the chemical industry

in Germany that commits employers in the industry to analysing their staff structure,

qualifications, rates of sick leave and other demographic details as a way of informing

the measures to be taken by an enterprise (European Foundation for the Improvement

of Living and Working Conditions, 2013: 19–20).

Flexible work practices

It is important to acknowledge that not all older workers want or need flexible work prac-

tices in order to maintain or sustain their workforce participation, and the form in

which they might seek flexibility is likely to be diverse. However, where sought it has

the capacity to have a positive impact on achieving the stated goal of extending work-

force participation, as well as contributing to a broader distribution of employment

opportunities. Research in the UK shows that flexibility in working arrangements for

those with health concerns or caring responsibilities is a desirable option (Vickerstaff

et al., 2008: 5). Many countries facilitate this process in circumstances where workers

are returning from parental leave, and this has been extended in some countries to

cover other forms of carers’ responsibilities. This clearly has a gendered aspect to it,

but can also have an ‘older worker’ dimension as well. In the Australian context it has

been found that the prospect of a worker needing to provide care to another increases

with age and that the majority of carers are aged 45 years or over (Australian Bureau of

Statistics, 2009: 10).

Some jurisdictions provide a right to request flexible working arrangements to all

employees as a way of retaining staff, increasing commitment and improving productiv-

ity A broader right to request available to all employees can ‘mainstream’ the concept of

flexibility. This approach has been adopted in some EU counties and is being

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contemplated in some other jurisdictions (HM Government UK, 2011; Australian

Human Rights Commission, 2013: 27). Commonly the ‘rights’ aspect of the request for

flexible working arrangements is limited. The refusal of a request by an employer usu-

ally must be grounded in a justifiable business case, with such a refusal justiciable in

some jurisdictions but not others. In the Australian context, an agency evaluation of the

statutory right of parents to request flexible work arrangements found relatively low rates

of refusal (Australian Government, 2012).

In 2013 the right to request flexible working arrangements under Australian labour

laws was expanded to specifically include employees who are 55 or older, with a refusal

by the employer only available on the basis of ‘‘reasonable business grounds.’’10 This

‘right’ is not contingent on their status as a carer, but can be triggered purely on the basis

of reaching the stipulated age threshold. Like other formulations of the right to request

flexible work arrangements, the right is not justiciable, and there is no statutory

mechanism for formally challenging a refusal. While a number of government-

commissioned reports have lobbied for this extension of the scheme (Advisory Panel

on the Economic Potential of Senior Australians, 2011: Rec 15), others have been con-

cerned that formulating the right to request based around the attribute of age per se,

rather than caring responsibilities, could contribute to on-going discriminatory prac-

tices against older workers and exacerbate negative stereotypes (Australian Law

Reform Commission, 2013: [4.44]–[4.52]). The expansion of the statutory scheme to

include employees who are 55 or older does mean that for older workers who are seek-

ing greater flexibility as a way of sustaining their workforce participation there is an

established mechanism for pursuing this possibility. It has the potential to allow for

greater dialogue on transitions to retirement and retirement preferences. This approach

also has the potential to facilitate some intergenerational redistribution of employment

opportunities, knowledge transfer and succession planning, while allowing older work-

ers the dignity of choice as to the level and form of continued workforce participation.

Pension reforms referred to above, that allow access to pensions, occupational pen-

sions schemes and benefits payments while maintaining a limited form of on-going

employment, work in unison with this approach.

A reasonable adjustments approach

Another pivotal consideration is whether the obligation to make reasonable adjustments

to accommodate the capacity and circumstances of an individual that applies in the dis-

ability discrimination context should be extended to other protected attributes such as

age. Canada is one of the few jurisdictions where this extended obligation operates. In

that context, the duty to accommodate has been described as a standard that ‘‘must

accommodate factors relating to the unique capabilities and inherent worth and dignity

of every individual, up to the point of undue hardship.’’11 Recent debate over reforms to

the overall framework of equality legislation in Australia raised the prospect of a duty to

make reasonable adjustments applying to all attributes, and many stakeholders supported

this approach on the basis of clarity and consistency between attributes (Discrimination

Law Experts’ Group Submission, 2011: 12). If a duty to make reasonable adjustments

was applicable in the context of age discrimination, an employer would need to look

MacDermott 93

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at whether changes could be made or criteria varied to accommodate the situation of an

older worker. Along similar lines to the disability context, this obligation may be subject

to the qualifiers of ‘reasonableness’ and ‘unjustifiable hardship.’

If we look at the type of common perceptions that tend to discourage employers from

hiring or retaining older workers, concerns regarding capacity to undertake the work fea-

ture prominently, whether or not this is a misconceived perception or an actuality. A duty

to make reasonable accommodations with respect to the attribute of age would move the

focus away from the exclusion of older workers based on perceived incapacity, with the

focus instead being on facilitating an individual’s actual capacity for undertaking

the work in question. Given the policy imperative of extending workforce participation,

it is the long-term sustainability of jobs in the context of an ageing workforce that must

be pursued. The issue of sustainability has been a focal point of the public debate sur-

rounding pension reforms, but is also a crucial aspect in the retention of older workers.

It necessitates an examination of existing working conditions and the implementation of

appropriate modifications to job design and working practices (Eurofound, 2012). The

sustainability of work encompasses the specific conditions under which the work is

undertaken, the nature and variability of the work itself, span of hours and work-life bal-

ance. However, one distortion of the ‘sustainability’ concept that does need to be chal-

lenged is the version that advocates that the employment of older workers is only

sustainable if lower wages are payable.

Another prevalent stereotype that works against the hiring or retention of older work-

ers is that older workers are perceived as not willing or able to adapt to new processes,

and that their skills are not well suited to the dynamic nature of the modern workplace.

Qualitative research in this area indicates that few learning and development opportuni-

ties are made available to older workers (Beck, 2012), with negative stereotyping and

views on return on investment arguments operating to exclude many older workers from

such opportunities (Canduela et al., 2012). Training and re-training can be encouraged

through tax incentives or subsidies, and where older workers do have the skills based

on experience, but lack the formal qualifications attesting to this achievement, appropri-

ate measures should be set in place to recognize this in accreditation. But it is often the

absence of any offer of training or opportunity to develop new skills that is the problem,

which then in turn becomes the justification for the failure to hire or retain an older

worker. A reasonable adjustments approach would shift the focus to what training and

development opportunity could be provided to an individual older worker, and in what

form, that would enable them to secure and sustain workforce participation.

Conclusion

The oceans of diversity-related age discrimination messages, which use clever titles like

‘grey matters’ or ‘turning grey into gold,’ do not necessarily change deeply engrained

attitudes to ‘life-cycle’ defined workforce participation. While the demographic actual-

ities mean that employers will at some point inevitably need to accept the ‘greying’ real-

ity, many still perceive younger people as being more adaptable and better able to

succeed in modern working life. Nor will employers necessarily be sold on the equality

argument. But employers are increasing influenced by the business case for effective age

94 International Journal of Discrimination and the Law 14(2)

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management policies that can facilitate intergenerational cooperation, knowledge trans-

fer and succession planning. Decisions by older workers about extending workforce par-

ticipation, while predicated on factors such as affordability of retirement, health and

carers’ responsibilities, are influenced by the availability of flexible work practices,

phased transitions to retirement and the inclusiveness of on-going training and develop-

ment opportunities. Addressing factors that impact on the sustainability of working con-

ditions is also significant. Legislation and social policy can tinker with the age-based

eligibility for pensions and benefits as well as other financial incentives and disincen-

tives. However, the maintenance of, and commitment to, genuine employment opportu-

nities for older workers, unfettered by negative perceptions of age, must be a pivotal part

of the broader solution to the demographic and fiscal challenges.

Funding

This research received no specific grant from any funding agency in the public, commercial or

not-for-profit sectors.

Notes

1. For developing countries, where there is often a younger population, the problem tends to be

the absence of the supporting social infrastructure of developed social security systems and

retirement income schemes.

2. ILO Convention on Discrimination (Employment and occupations) Conventions 1958

(N0111), ILO Older Workers Recommendations 1980 (No162).

3. See recent reports of plans in Greece to replace 15,000 public servants with younger candi-

dates: see http://www.bbc.co.uk/news/world-europe-22328710

4. EU Employment Equality Directive, Article 6.

5. R (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform

Case C-388/07 [2009] ICR 1080. See also Petersen v Berufungsausschuss fur Zahnarzte fur

den Bezirk Westfalen-Lippe, Case C-341/08, [2010] 2 CMLR 830; Wolf v Stadt Frankfurt

am Main, Case C-229/08 [2010] 2 CMLR 849.

6. Rosenbladt v Oellerking GmbH, Case C-45/09 [2011] CMLR 101.

7. ET/1100275/07.

8. 1995 SC c 44 (Canada) c2.

9. Fair Employment (Northern Ireland) Act 1989 (NI).

10. Fair Work Amendment Act 2013 (Cth).

11. British Columbia (Public Service Employment Relations Commission) v British Columbia

Government and Service Employees’ Union [1999] 3 SCR 3 at [62].

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