Article

Older workers and

extended workforce
participation: Moving
beyond the barriers to
work approach

International Journal of
Discrimination and the Law
2014, Vol. 14(2) 8398
The Author(s) 2014
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229113520211
jdi.sagepub.com

Therese MacDermott

Abstract
Many countries have responded to the prevailing fiscal and demographic challenges by
introducing measures to extend the workforce participation of older workers. This
paper assesses the type of measures commonly utilized to extend labour force participation, using examples of legislative reforms and social policy initiatives in Australia, the
UK and other EU member states. It argues that these measures are principally aimed at
mandating or incentivising extended labour force participation, and lack a focus on
achieving substantive outcomes for older workers. This paper explores the type of
measures necessary to move beyond a barriers to work approach, with a particular
emphasis on promoting and sustaining the inclusion of older workers through strategies
that encourage employer engagement in ascertaining and addressing structural impediments facing older workers, that facilitate flexible work practices and that implement a
reasonable adjustments approach.
Keywords
Age, 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

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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 maintain a broad tax base of working persons to meet these future costs, and generates associated 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 reducing reliance on pensions and social security entitlements and to prolonging taxation contributions. 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 6064 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 mandatory retirement age. Changing those norms and expectations involves a range of different 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 individual 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 challenges 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 Australia, 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 actually 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 economic 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 necessary to move beyond a barriers to work approach towards a strategy that aims to promote 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) conventions and associated recommendations also provide a basis for proscribing agerelated 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 (OCinneide, 2003: 199200). 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 (BisomRapp 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 circumstances; 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 intergenerational 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 nonstandard 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 middleclass men (Friedman, 2003: 175182). 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 children 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 participation is to simply change age-based eligibility for pensions. This has the dual consequence 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 adequacy of such schemes. Many countries are currently implementing or actively contemplating 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 diminish 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 positive financial incentives for extended workforce participation. Relaxing the rules on
access to pensions, occupational pensions schemes and benefits payments, while maintaining 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 retirement savings or tax deductibility for additional voluntary contributions to occupational
pension schemes.
However, these approaches do not address the vexing question of whether the mandated 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 opportunities 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 prerequisite for extending the workforce participation of older workers in many countries,
and national legislation prohibiting age-based discrimination at work is relatively common. 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 providing a discrete avenue for redressing individual complaints. In common with most
complaints-based equality legislation, pursuing specific incidences of workplace age discrimination 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 compensation 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 reasonableness. 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 objectively and reasonably justified by a legitimate aim, and where the means adopted is considered 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 indicates 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 people 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 humiliation, and avoiding the need for costly and divisive disputes about capacity or underperformance. 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 curtailing 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 (BisomRapp et al., 2011: 107109).
The notion of the justifiable sharing of employment opportunities between the generations, 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 consequence 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 particular 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 designated 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 UKs
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 declining 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 suggests 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 accommodating 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 contemporary work practices and demands, and that an age-diverse workforce is more sustainable 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 participation is highly variable, and dependent to a large degree on individual circumstances. The
common determinants include financial security, health and disability and caring responsibilities. 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: 8182). 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 employment 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 Ranzijn, 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 facilitating 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 employment 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) mechanisms 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 underrepresentation continues to be problematic (see Hepple et al., 2000: 6472). 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 structural 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 workers. 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 optimistic 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 compliance response (McCrudden, 2007; McCrudden et al., 2009).
As an alternative to approaching employment equity through general obligations, collective 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 enterprises 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 noncompliance 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 suggests 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: 1617). 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: 1920).

Flexible work practices

It is important to acknowledge that not all older workers want or need flexible work practices 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 workforce 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 productivity 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 usually 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 governmentcommissioned reports have lobbied for this extension of the scheme (Advisory Panel
on the Economic Potential of Senior Australians, 2011: Rec 15), others have been concerned that formulating the right to request based around the attribute of age per se,
rather than caring responsibilities, could contribute to on-going discriminatory practices 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 seeking 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 workers 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 pensions 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 disability 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

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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 feature 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 individuals 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 surrounding 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 balance. However, one distortion of the sustainability concept that does need to be challenged 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 workers 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 opportunities 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, appropriate 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 actualities mean that employers will at some point inevitably need to accept the greying reality, 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

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management policies that can facilitate intergenerational cooperation, knowledge transfer and succession planning. Decisions by older workers about extending workforce participation, 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 development opportunities. Addressing factors that impact on the sustainability of working conditions 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 disincentives. However, the maintenance of, and commitment to, genuine employment opportunities 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 candidates: 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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