Age Discrimination: Too Young or Too Old?


Two major decisions handed down last week by the UK Supreme Court have brought the issue of age discrimination back under the spotlight. Mandatory retirement age was abolished in the UK in 2011, although employers can still apply it if they can justify it on the grounds of proportionality in achieving a legitimate aim.

Both cases, Seldon v Clarkson Wright and Jakes and Homer v Chief Constable of West Yorkshire Police, dealt with employees being discriminated directly or indirectly in relation to their retirement age. The two situations were however rather different. In Seldon, the claimant was a solicitor required to leave the law firm Clarkson Wright & Jakes (CWJ) at the age of 65th according to the partnership agreement. This policy was justified on the basis of integrating younger people and giving partnership opportunities to young generations. In Homer, the claimant was a legal adviser with the police national legal database who alleged that he was subject to indirect age discrimination as he was ineligible for a promotion that required him to have a law degree. His argument was that, given he was aged 62; he could not obtain a law degree before the age of retirement (65) and thereby apply for the promotion.

Neither ruling determined the outcome in the specific cases, as both were sent back to the employment tribunals. However, Lady Hale delivered both principal judgments essentially concluding that both age discrimination claims had some merits but that specific circumstances had to be considered. Lady Hale concluded, in Seldon, that to justify a policy it is not sufficient for an employer to show that it has an aim that is capable of being a public interest aim (such as the aim to integrate young people thereby dismissing older partners / employees) and that it must in addition be shown that it is actually a legitimate aim in the particular circumstances of the employment. In Homer, the claimant’s appeal was dismissed and it was held that the requirement of holding a law degree could be considered indirect discrimination but that this depended upon a valid justification on the side of the employers.

These cases highlight the basic fact that age is not a condition of an individual (such as disability) nor a permanent characteristic which is subdivided into generally speaking clear-cut ‘categories’ within society (gender, ethnicity or sexual orientation): age is rather a specific situation part of human life. There is no clear boundary between one phase of life or another. The ability to work in later years really depends on the individuals’ mental and physical health. However, businesses are likely to consider that at an older age, people might be less flexible and adaptable than younger people thereby slowing down their work activity or reducing innovation. This clearly is a delicate topic, as one can see both sides easily and must be careful to argue heavily either way given the implications on society as a whole. But what, in my opinion, is the strongest argument in favour of mandatory retirement age, would be the possibility of opening up the job market to young people. Just like dignity of old workers is considered and protected, the same should apply to young people who are either struggling to find employment or, once on the job, are not given enough chances to show what they are capable of.

Michael Skapinker argued in his article on the Financial Times (The Law is a Grey Area for Employers of the Aged, Thursday 3rd May 2012) that the Supreme Court rulings made the law even more woolly that it already is, thereby leaving uncertainty amongst employers as to what they are and what they are not entitled to do in relation to retirement ages. Michael Skapinker makes the fairly obvious but excellent point that “we all start off young and, with luck and good health, end up old. If the law acts to protect the elderly, we will all benefit one day.” Yet, however tempting it might be to agree with him, I must resist this point. Society will not benefit now or tomorrow if there is no generational interchange and if older employees have no “time limitations” than enable newer generations to step in. This clearly results in older generations holding the economic and labour power, whilst being forced to support younger generations unable to sustain themselves, to repay university debts and to start-up families. Whilst Mr. Homer (Homer v Chief Constable of West Yorkshire Police) might have felt that it was unfair to him to be ineligible for a position requiring a law degree, it would be equally if not more unfair to make a position for a law graduate impossible to reach because old staff – regardless of their qualifications – can have priority over them. I struggle to see how this will benefit the young a few years along the line.

The Supreme Court might be implicitly supporting this view as its rulings effectively mean that employers are entitled to require older staff to leave, provided this is justified on stronger grounds than mere cost cutting and improvement of competition. However, in considering two cases which effectively approach the issue of age discrimination from the one-sided perspective of the older staff, one should not forget, in the wake of the London riots, society’s interest in providing jobs – and dignity – to younger generations.

Behind the Bars


Although it was not my first visit to a prison, it did not feel just like any other day. It was early, still pitch dark outside. Trying to figure out what clothes to wear was rather difficult. I knew it was sensible not to wear any low cut tops or short skirts (rather obvious), but I was also advised not to wear scarves or elegant clothes. I opted for a pair of jeans and a sweater. I also knew that I could not take anything possibly relating to computers, such as USB sticks or CDs, but also I couldn’t take in chewing gums which apparently are used by inmates to force the locks open (don’t ask me how!).

Waiting at the bus stop, there I was: standing in the freezing cold on my way to HMP Pentonville Prison in London.  Some notorious inmates of this prison have been George Michael and Pete Doherty (who also wrote a song called Pentonville). When I arrived, I was surprised to find that the building is very visible from the main road and houses are built very close-by. In fact, some of the cells’ windows can be easily seen from the road. I got in through the main entrance and had to get a Visitor’s pass after having had my fingerprints and a photograph taken by security. No mobile phones could go past security, so I left mine in a locker. Clearly, no cameras could be taken inside either so the photographs in this post were found online and were not taken by me.
When I walked in, accompanied by internal staff, it was the time of what is called ‘free flow’, that is, when cells are unlocked (I think different wings are unlocked in turns and not all cells are unlocked, e.g. those with high security regime) and prisoners are moving from one wing to another heading to whichever activity they’re meant to attend. These activities can be educational or simply taking a shower. ‘Free flow’ lasts for about half an hour and it takes place about twice every day. When it ends, everything is locked up again and inmates are either back in their cells or in another space where they’re undertaking an activity such as a workshop. I couldn’t help but notice that the great majority of inmates was either black or Asian, although there were a few whites too. From what I saw, most of them were also quite young.

Pentonville was the first prison in Great Britain to put into practice the enlightened ideas of the prison reformer, John Howard. Built in 1840-42 to the designs and under the direction of Major (later Sir) Joshua Jebb, Surveyor General of Prisons, it pioneered the separate housing of inmates in wings radiating out from a central hall. (Source: http://www.elton-engineeringbooks.co.uk/highlights/jebb.htm) The only time it stopped being used as a prison for English inmates was during the Second World War, when it was used to hold German prisoners. Other than that, it’s been actively in use since it was first opened.

Source: http://www.elton-engineeringbooks.co.uk/highlights/jebb.htm

Pentonville has 7 residential wings:

  • A wing – Induction and First Night Centre. This wing has recently been refurbished to cater for new arrivals into custody.
  • B wing – Resettlement wing
  • C and G Wings are for remand and convicted prisoners and provide services including education, workshops and offending behaviour courses
  • D Wing – Is the enhanced wing
  • E Wing – Substance Misuse Unit
  • F Wing – IDTS (Stabilisation Unit)

I walked through one of the wings (I am not actually sure which one it was, but I think it must have been either C or G) and I was surprised by the brightness of the spaces. Of course, the light is not as abundant in the cells. Some of the cells, those for vulnerable inmates, are actually in the basement and have no natural light. The prison was built for around 600 prisoners, however now the prisoners are more than 1200 and all cells (intended for one individual only) host two prisoners. Although I didn’t actually walk inside a cell, I could see they were tiny and there was barely room for a bunk bed and a table where prisoners eat. In fact, they collect food and eat in their own cells rather than in a shared canteen. Breakfast is collected together with the evening meal, but most of them apparently eat it in the evening or at night because they’re hungry and end up skipping breakfast the following morning. Some cells have a TV, which the inmates pay for. I was told that, although it seems like an excessive privilege, it is actually a very good weapon to use to make sure the prisoners behave well. In fact, I understood that the threat or the actual act of taking away the TV is sometimes more effective than any other threat. Clearly, spending so many hours locked up, the worst thing is making time go by without going crazy. It is also better to let them watch TV rather than get into fights with each other or using drugs (although they probably do it anyway, although Pentonville has gone down hard on the fight against drugs given the recent scandals).

I had the opportunity to see a classroom which was actually well equipped, with some computers, a board, large tables and chairs. The computers don’t have internet connection and even the staff’s own computers, which are located in separate sections of the wings, to which prisoners have no access, have limited access to internet. Although this might sound obvious, every single space is separated by locked gates which need to be unlocked to go through and locked immediately after. Even to simply access the staff’s toilet or a staircase, there will be one or two locked gates and doors to get through. On my way out, the food was being served for lunch and the smell was absolutely unpleasant and I surely did not feel hungry after that.

 Source: The Guardian

It was a very interesting experience, because, while one can imagine what a prison is like from all the films that depict life in prison, the reality is not as ‘cool’ as television and the cinema make it appear.

A report published in June 2011 by Her Majesty’s Inspectorate of Prisons for England and Wales (HMI Prisons), sadly confirms my general perception of the building’s state:

 “Pentonville is an iconic prison, but not always for the right reasons: its four central wings are over a hundred and fifty years old, it has a large and transient population drawn from some of London’s poorest boroughs, and its prisoners have amongst the highest incidence of mental ill health and substance abuse of any local prison in the country. […]Pentonville is amongst the most challenging local prisons in the country to run. Its ageing and crowded fabric offers limited scope for change or development, its population is not only transient but also hugely needy – and sometimes challenging – and resources are declining. Despite all this, managers and staff were working hard to make the prison a safer and more decent place. There was now a little more purposeful activity and some exciting, if nascent, ideas to work with local authorities to improve resettlement outcomes. It goes without saying that there is much more to do. Indeed the scale of the issues facing Pentonville means that it is also essential that the prison is supported by an effective London-wide strategy – but there is now at least a positive sense of direction.”

Source: The Guardian

The most overwhelming feeling even for someone who, like myself, knew perfectly well I’d be inside for no more than a couple of hours, is that, as you walk in, you lose control of what’s happening around you. The doors and gates rapidly being locked behind you, you realise that if – for any reason – you actually wanted to leave, you would not be able to do so without having someone able to let you out. Despite that, I actually came out feeling quite positive about the overall experience: seeing the prisoners so close-by, walking right next to them, reminded me that, even if many – if not most of them – have committed some serious crimes, they are humans. Some of them are there because they probably were unlucky enough to be born in the wrong place, to the wrong family or ended up mixing with the wrong crowds.

That is not to say that I feel sorry for them or that I would forgive the crimes they have committed and for the pain they’ve caused to others. Rather, it is to say that seeing a prison from inside has made even stronger, in my eyes, the case in favour of Article 6 (European Convention of Human Rights) rights. When you see with your own eyes what life in prison means, you understand why the criminal justice system must strive to secure convictions of the guilty and ensure acquittal of the innocent. Unfortunately, even in a perfectly well-oiled criminal justice machine, there are bound to be mistakes. This is why the importance of the right to a fair trial in full respect of the presumption of innocence, the equality of arms and the impartiality of the tribunal, must never be underestimated or taken for granted. The natural continuation of the right to a fair trial is the full compliance with human rights inside the prison, that is not to say to give unlimited privileges to prisoners but simply to remember that they are humans despite the inhumanity of some of their actions and – if we are to call ourselves a modern society – we must strive to respect their human dimension and, if possible, help them to rediscover it through rehabilitative and educational programmes.

Source: The Guardian

For anyone interested in more information on HMP Pentonville or the prison system in general, I have found this website very informative and useful: http://www.insidetime.org/info-regimes2.asp?nameofprison=HMP_PENTONVILLE.

The pictures in this post (except for the image of Jebb’s drawings of the prison plan) were all published by The Guardian online.