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cion or verbal abuse of employees, whether by the employers themselves or
other employees. There should be systems and methods in place to prevent ver-
bal abuse, bullying, threats, shouting, illegal fines, sexual abuse, beatings and
humiliating punishments “ all are considered to be examples of inhumane
treatment and abuse of employees. High risk countries include China, Indonesia
and Vietnam.


Discrimination
Discrimination is a global issue prevalent in all societies. Elements of society
are treated differently because of their gender, race, national origin, religion,
caste, class, age, disability, marital status, sexual orientation, political affilia-
tion or union membership. In the world of work, this means that some people
have few opportunities to be hired, promoted or trained and usually receive
lower wages, poorer work conditions, or their jobs may be less secure. High risk
countries are India, Malaysia and Thailand.
The UN Norms note that transnational organisations and businesses should:
¦ ensure equality of opportunity and treatment, as provided in the relevant international
instruments and national legislation as well as international human rights law, for the pur-
pose of eliminating discrimination based on race, colour, sex, language, religion, political
opinion, national or social origin, social status, indigenous status, disability, age ¦



The EU provisions on non-discrimination
One of the cornerstones of the provisions of European regulatory developments
has been non-discrimination. While non-discrimination on the grounds of
nationality (of a member state) or of gender (in work-related situations) has been
part of EU policy since the original Treaty in 1957, it was only in the Amsterdam
Chapter 14 “ Human resources risk (human rights inside the workplace) 329



Treaty in 1997 that the idea of taking ˜appropriate action to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age or sexual
orientation™ was introduced into the EU™s legal base (see Article 13). Article 13
of the European Treaty (as amended at Amsterdam) creates a competence for
the EU to act in discrimination-related issues. The article states as follows:

Without prejudice to the other provisions of this Treaty and within the limits of the
power conferred by it upon the Community, the Council, acting unanimously on a pro-
posal from the Commission and after consulting the European Parliament, may take
appropriate action to combat discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation.

The EU Council of Ministers adopted in December 2000 a package of three
measures as follows:
Council Directive 2000/43/EC implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin. This Directive imple-
ments the principles of equal treatment between persons irrespective of
racial or ethnic origin in any field and activities of life. It sets a good prece-
dent for future similar actions in the areas of non-discrimination, including
non-discrimination on the grounds of age;
Council Directive 2000/78/EC establishing a general framework for equal
treatment in employment and occupation. This Directive establishes a frame-
work for non-discrimination on a larger number of grounds (it adds discrim-
ination on grounds of religion or belief, disability, age or sexual orientation),
but in the narrower field of employment and occupation; and
Council Decision 2000/750/EC establishing a Community Action Programme
to combat discrimination (running from 2001 to 2006). The programme will
run until 2006, and is structured around three objectives as follows:
To improve the understanding of issues related to discrimination through
exchange of best practices and information between member states;
To strengthen the capacity of organisations working in this field; and
To promote and disseminate practices and to raise awareness on these
issues.




Directives
It should be recalled and understood that a directive is a type of European
Community legislation, which is legally binding. It must be transposed
into national law, which means that legislation in the member states must
be adapted to fulfil the criteria as determined by the Directive. A Directive
can include more or fewer details, giving the member states more or fewer
possibilities to adapt national legislation to fit national legal systems. The
two EU Discrimination Directives set up deadlines for their implementa-
tion by member states.
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330



Age discrimination
One significant trend of modern day society is that in general people are living
longer, and with an increase in life expectancy in most countries it is a signi-
ficant and growing risk issue that age discrimination is apparent in many
organisations.


Age discrimination definition
It has become more and more clear that age discrimination is the basis of
and at the root of many of the challenges encountered by older people.
With this in mind age discrimination can be described as a difference in
treatment and opportunities for citizens solely on grounds of their chrono-
logical age. It usually denies equal opportunities and equal access for
older people. Age discrimination is based on ageism, which is a set of usu-
ally negative assumptions about older people and ageing, which is wide-
spread and widely believed to be true. These beliefs usually “ and in many
places “ justify these discriminatory actions to a large extent. Even where
they have been previously dynamic and important contributors to society,
this means that older people are commonly viewed as disabled, dependent
and troublesome. Moreover these views generally pervade the whole of
society.
With this in mind, from the regulatory perspective business organisa-
tions that operate in the member states of the European Union will have
to keep abreast of developments in European law that affect national
requirements.




The impacts on business
Financial penalties: those companies and business organisations that breach the
EU laws banning age discrimination as a result of the legislation may have to pay
out up to £200 million in the first year following implementation according to
various legal experts. They have been considered to be the most fundamental
change to employment practices since the 1970s when anti-discrimination race
and sex laws were introduced. As a result of these requirements ˜ageism™ will
become key to corporate life and practice.
Changing work practices: under the legislation certain practices are likely to be
outlawed or illegal as priorities, such as:
Advertising specifically for younger or more mature recruits, using phrases
like ˜young and enthusiastic™;
Demanding that candidates for posts or jobs state their age in their r©sum© or CV;
Making ageist jokes in the workplace including staff birthday cards joking
about age;
Chapter 14 “ Human resources risk (human rights inside the workplace) 331



Practising indirect age discrimination, such as advertising for a person with
15 years™ experience;
Denying training to older workers or employees;
Compelling or forcing staff to retire before the age of 65; and
Promoting people on the basis of their age and using age in their salary
structure.
Economic drain: it is a real concern that a vast resource of talent and skill is
allowed to remain dormant within society. An example is that a third of the
UK™s 50“65 age group are out of work and yet the UK complains about a skills
gap. This is not only a waste of money, costing the economy an estimated £16
billion, but it is also a shocking waste of their experience.
Missed growth opportunities: there are opportunities to be gained from hiring
an arguably more trustworthy, customer friendly and dependable group of
employees by developing age positive programmes as in the US and UK home
improvement retailing sectors. The UK Employers Forum on Age, an organisa-
tion that lobbies against ageism practices, maintains that instead of worrying
about the new legal requirements businesses should embrace them. The forum
argues that according to current figures age discrimination costs the UK busi-
nesses about £30 billion per annum as a result of the neglect of experience and
knowledge of more mature people in the workforce and the workplace. They
consider that workplace diversity “ in this instance age diversity “ can eliminate
costs by helping a business to reduce its employee turnover and to create a sta-
ble and motivated workforce.



Recent employment law requirements on ageism
The UK perspective
In the UK, age anti-discrimination legislation is being introduced as a direct
result of the European Employment Directive 2000. Under this Directive, essen-
tially, discrimination in the employment field on the grounds of a person™s dis-
ability, age, religion or sexual orientation must be outlawed in all EU countries.
The main deadline for introducing this Directive into UK law was December
2003. However, EU countries were able to request a further extension of three
years to introduce legislation outlawing discrimination on the grounds of dis-
ability and age. The UK government requested a delay of 12 months to intro-
duce legislation to outlaw disability discrimination, and three years to outlaw
age discrimination. As a result the new legislation that became law in October
2006 is the latest part of the 2000 Employment Directive, which seeks to outlaw
discrimination in the workplace.
It is important to bear in mind that the UK government negotiated an exten-
sion on age discrimination until 2006 to prepare businesses for the change. Yet
although the government did the same with the Disability Discrimination Act
some 80% of UK businesses were unprepared for its implementation. In addi-
tion government delay in drawing up the relevant regulations meant that many
Part C “ Overview of the Social Aspects of Business Risks
332



businesses did not know about the changes. The draft regulations that were
promised by government ministers in October have yet to be published.
Accordingly, it is important that small businesses monitor the developments in
the coming months either directly or through their advisors. Indeed the delay
by the government has been of concern to some lawyers who have noted that
the government has been very late in producing consultations and employers
have been left up in the air about some parts of the laws. The detail will be most
important: ministers will be able to be flexible over the way in which the
Directive is implemented and will be able to state exactly what is allowed
under the new rules and what will be outlawed (see further below).
It should be mentioned that the UK lagged behind other countries, such as
Australia, Canada, Ireland and the United States (see further below), in general
as regards the introduction of age discrimination laws. Slowness has been partly
due to the dominance of the issues that falls within the European Directive “ the
retirement age.



The European perspective
It has been noted that the European Parliament has been at the forefront of
introducing legislation to help older people. As well as overcoming significant
reluctance from the UK government to include age discrimination at work in
the Employment Directive, members of the European Parliament have also
called for more training for older people in the employment guidelines; and the
European Parliament has also approved an important report on healthcare for
elderly people. Indeed it was in the face of many of the same demographic chal-
lenges that have confronted “ and continue to confront “ the United States, par-
ticularly shrinking numbers of younger workers, that the European Union (EU)
decided to combat age discrimination in employment. On 27 November 2000,
the European Union Council of Ministers adopted the European Directive on
Equal Treatment which required all EU member states to introduce legislation
prohibiting discrimination in employment on the grounds of age, sexual orien-
tation, religion and belief, and disability by 2006.
While the process of implementation of the Directive is now taking place
in all the member states, some commentators have noted that the progress that
has been made has been slow even among those who had not sought any exten-
sion or delay. For example, at a conference on the implementation of the anti-
discrimination directives into national law in Copenhagen in November 2001
member states were asked to report on the status of legislative initiatives. At
that time, only the Netherlands had introduced a bill to comply with the
Directive although France reported that it had taken action by passing an
amendment to an existing law to add age as a prohibited ground for making
employment decisions. As with other aspects of employment law EU law has a
dynamic impact on the way that business is carried out and as a priority the
other member states will have to take the necessary steps to ensure timely com-
pliance with the Directive™s deadline that legislation is in place by 2006.
Chapter 14 “ Human resources risk (human rights inside the workplace) 333



Nevertheless there have also been various criticisms of the drafting of the
European legislation. Some commentators have noted that the loopholes in the
Directive “ especially when combined with the members states™ delays in tak-
ing steps to enact legislation “ suggest that the EU is a long way from either
˜talking the talk™ or ˜walking the walk™ when it comes to eliminating age dis-
crimination.


The United States perspective
As is the case in several other areas of employment law and as regard the vari-
ous regulatory approaches in this area the experience of the United States can
be helpful. In the environmental law field this has been termed a ˜transatlantic
dialogue™. The term ˜ageism™ was evidently coined by Robert N. Butler, MD, to
describe the ˜deep and profound prejudice™ against the elderly which is found
to some degree in all of us (see Robert N. Butler, Why Survive?: Being Old in
America (1975)). Mr Butler describes ageism as:
a process of systematic stereotyping of and discrimination against people because they
are old, just as racism and sexism accomplish this with skin color and gender ¦ Ageism
allows the younger generations to see older people as different from themselves; thus
they subtly cease to identify with their elders as human beings.

As the United States has had federal legislation prohibiting age discrimination
in employment for some 40 years “ since 1967 “ when considering the appro-
priate European framework the EU turned to the US for consideration and
understanding of their expertise and experience. Several US employment
experts have commented that perhaps the most important message that they
have tried to convey to the European institutions is that a good law is not a
panacea for ridding the workforce of age discrimination. It is stark evidence
that despite the fact that the United States™ Age Discrimination in Employment
Act (ADEA) has been in place for so many years, age discrimination in employ-
ment remains a pervasive feature of the business community. Indeed, it has
been reported that complaints regarding age discrimination filed with the
Equal Employment Opportunity Commission in the US (the EEOC) have
increased 41% since 1999. In the US one-fifth of all discrimination claims are
based on age. Between 1988 and 1995 it has been reported that people claiming
age discrimination damages in the US were awarded an average of £114 000
compared with £74 000 for race discrimination and £54 000 for sex discrimina-
tion settlements.

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