Leiden Law Blog

Fifty shades of grey

Posted on by Barend Barentsen in Public Law , 2
Fifty shades of grey

How to ensure that older workers stay in the labour market? How to fight age discrimination (‘ageism’) and how to guarantee the right to retirement after long years of service? These are but a few of the questions that were addressed at the annual conference of the European Labour Law Network (ELLN). The central theme of  this year’s conference was active ageing in a greying labour market. Experts – scholars from all EU member states, practitioners and representatives from social partners and the European Commission - discussed age-related issues and the implications of these for labour law.

The conference opened with some rather bleak descriptions of the current situation. Unemployment (and inactivity) is high within the older working population in the EU. Once out of a job, the chances for an older worker to find gainful employment again are not so good or downright hypothetical. The exact numbers vary from member state to member state, but the general picture is not rosy, to say the least. In order to keep pensions and other social benefits sustainable, it is necessary to raise the average retirement age. On the one hand people are getting older, while on the other hand increasingly fewer younger workers are entering the labour market. At the same time, the necessity to keep workers on the labour market up to a higher age must not preclude them from retiring in dignity. A system of ‘working till you drop’ is to be avoided.  

One of the points raised during the conference was that age, as such, might not be the problem for older workers. A lack of current skills and training and poor health were mentioned as more important factors. It follows from this observation that labour law and labour market policies would be better addressed to tackle those problems, rather than age (discrimination). Investing in the rehabilitation of sick and handicapped workers and protecting them from unfair dismissal might prove to be more fruitful than specific age-oriented measures.

Even so, opportunities for older workers on the labour market are influenced by prejudice. In spite of demographic developments, a youth culture still seems to prevail in society at large and among employers. A prohibition of ageism, as laid down in the EU Directive 2000/78, has a limited effect, though. One of the explanations is that this type of discrimination is of an altogether other nature than more heinous types of discrimination, e.g. on the basis of race or gender. One cannot change the latter characteristics, but  - if all goes according to plan – one starts out young and ends up old. Everyone has a chance to reap the benefits related to a certain age, as well as having to face the drawbacks of another age. Age is a dynamic characteristic. “Ageing is happening on a daily basis”, as professor Catherine Barnard put it. Furthermore, differentiating the applicable rules according to age is widely accepted and even considered a fundamental right in a lot of cases. Strictly speaking, a prohibition of child labour or the right to an old age pension are ageist. The approach to an ageing working population should therefore be nuanced; on the labour market there should be a place for ‘fifty shades of grey’.

2 Comments

Barend Barentsen
Posted on November 17, 2012 at 21:38 by Barend Barentsen

Rubrica non est lex!
(Rest assured: I’m all for anti discrimination measures, whatever sphere of law the’re originating from. I just happen to work in the department of public law, but have a keen interest in wat happens on the other side of the fence (and I doubt whether there really is a fence!

Thanks fo the comment!

A.G. Castermans
Posted on November 16, 2012 at 11:39 by A.G. Castermans

Is this a matter of merely public law as the chosen category suggests? Long (!) live private law, which will ensure a short life for discriminating arrangements and dismissals.

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