Intervention by Bairbre de Brún at the Changing Ageing Partnership Conference

11 February, 2008

 


Goods, Facilities and Services
An opportunity to learn, an opportunity for the future

 

 

 

 

What’s happening at the EU level

 

 

Today’s meeting is one of many taking place across Europe in this 2007 European Year of Equal Opportunities for All.  

 

Events will take place at local, regional, national and international level which aim to

1. make EU citizens aware of their right to non-discrimination and equal treatment

2. promote equal opportunities for all; and  

3. promote the benefits of diversity for the European Union.

 

The activities during the year will be based on four key themes:

·                                Rights – raising awareness on the right to equality and non-discrimination and on the problem of multiple discrimination

·                                                        Representation – stimulating debate on ways to increase the participation of groups in society which experience discrimination and a balanced participation of men and women

·                                Recognition – facilitating and celebrating diversity and equality

·                                Respect – promoting a more cohesive society

 

In advance of the organisation for this year, the European Parliament stressed the important role of the social partners, local and regional authorities and NGOs.  They also stressed that the European Year of Equal Opportunities for All should not only act as a catalyst in raising awareness and building momentum, but should also help to focus  political attention in all the Member States and mobilise everyone concerned in order to drive forward the new non discrimination and equal opportunities framework strategy, including after 2007. 

 

In short that means that this year needs to include all the grounds for non discrimination cited in the consolidated EU treaties, and which we have incorporated in Section 75 of the Northern Ireland Act 1998, with the addition of the categories of marital status and those with or without dependents.   It also means that something concrete needs to come out of all of this activity and that it mustn’t finish when the year finishes on 31st December this year.

 

It is also important that it includes specific work on gender related aspects of issues such as caring and the particular impact of the pensions crisis on older women.

 

Many of the events that have taken place this year deal with implementation of existing legislation, such as training for business or for NGOs and trades unions, work on the need to have and to use equality data, and work on the use of positive action as a tool to redress the lack of substantive equality in our societies.

 

In answer to a question in parliament from a British MEP, Jean Lambert,  earlier this year, the European Commission confirmed that in terms of the events and activities being funded by the Commission this year, Member States must ensure that these activities include all the grounds of discrimination covered by EC law including age discrimination.  It also drew attention to the fact that it has published on its website the results of the mapping study on existing national legislative measures and their impact on tackling discrimination - going beyond the field of employment and occupation - on the grounds of gender, religion or belief, disability, age and sexual orientation.

 

As you know, as part of the European Year of Equal Opportunities the European Commission is undertaking a consultation on combating discrimination in the Member States and at EU level. The idea of the consultation is to help the Commission plan new measures to tackle discrimination on the prohibited grounds (on the basis of gender, religion or belief, disability, age or sexual orientation) in areas beyond the job market. This will be crucial to the whole question of older people’s access to goods, facilities and services.   Today’s event is tremendously important in this context, as will be the work being undertaken here with respect to the Single Equality Bill.  None of this prevents member states bringing in their own legislation in advance of action at EU level.

 

Age Concern has supported proposals to bring forward a new European Directive calling for added protections for older people and the introduction, on a Europe-wide basis, of goods, facilities and services protections.  In today’s debate, people may wish to think about whether to push for a Directive on older people’s access to goods, facilities and services, or whether it would be better to seek a broader Directive against discrimination in the provision of goods, facilities and services which specifies older people along with other groups. The advantage of the former is that the issues specific to older people can more readily be pinpointed. The advantages of the latter are that the forces supporting such a Directive will be stronger and more united and that the aspect of double or multiple discrimination could be more easily dealt with.

 

In celebration of the European Year of Equal Opportunities for All, the European Parliament Intergroups on Ageing, Anti-Racism and Diversity, Disability, and Gay and Lesbian Rights united their efforts to organise a joint meeting that took place on 15 February in the European Parliament in Strasbourg. Focusing on multiple discrimination, the Intergroup meeting was an opportunity to highlight the fact that in many circumstances, individuals are not only discriminated on the basis of just one ground of discrimination, but on the basis of multiple grounds of discrimination. 

 

Certainly at EU level there are many who are committed to continuing to fight for a cross-cutting directive. 

 

The Commission has announced that it will put forward initiatives in 2008 to prevent and combat discrimination outside the labour market based on gender, religion, belief, disability, age or sexual orientation. The results of the public consultation will feed into this process. 

 

Discrimination on grounds of Age

 

 

Discrimination on the grounds of age is a complex issue. Addressing it will require the mobilisation of a range of legislative and policy instruments.

 

I would like to take a quick look at some of the developments and challenges on the European level with regard to age discrimination in relation to employment; and instruments forbidding discrimination in relation to goods, facilities and services on other grounds.

 

The Employment Equality Directive 2000/78/EC

 

 

The Employment Equality Directive 2000/78/EC outlaws unjustified age discrimination in employment and vocational training, including pay and pensions.

 

 

This was an extremely important step in that age discrimination in the labour market has been considered by many to be more socially acceptable than other forms of discrimination. However the implementation of this Directive has been patchy. Some member states had difficulty in implementing this legislation.  Here it took six years before we saw the directive brought through into law and we all remember the Age Positive campaign. Now there is a big job of work to ensure that people know what their rights are so that they can avail of them.  We also need an ongoing awareness campaign to highlight the benefits of an age diverse workforce, including a wider skills base, improved productivity, higher retention rates, lower recruitment costs and better customer satisfaction.

 

 

Moreover, even if employers can no longer explicitly restrict recruitment to certain age groups, there are a lot of invisible barriers put in place.  While the terms under which employers may do these things are restricted by legislation, they show that there is still some way to go in relation to the full achievement of employment equality by older people.

 

 

On a more positive note, both the Employment Equality Act and the Equal Status Act in the South of Ireland state clearly that it is not necessary “for there to be an intention to discriminate, it will suffice that in fact there is discrimination”. This would seem to be an important principle not only in the field of employment, but also in relation to access to goods, facilities and services.

 

 

While the Employment Equality Directive is an important and positive instrument it does not apply to the provision of goods and services. So it does not prevent companies and service providers from discriminating on the grounds of age in areas such as health care, social care, financial services such as insurance, credit or loans. Older people also still complain of difficulties regarding access to education courses as part of lifelong learning.

 

Discrimination in the provision of goods and services

 

There have been some developments in the EU context which point the way forward both in terms of what to do and, indeed, in terms of what to avoid. Two EU Directives do include the question of discrimination in the provision of goods and services, the Racial Equality Directive 2000/43/EC and COUNCIL DIRECTIVE 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services

 

Furthermore, in the South of Ireland, as well as in Belgium, Hungary, Cyprus, Sweden and Lithuania, the laws prohibiting discrimination on grounds of age applies to access to goods and services as well as employment.

 

The Racial Equality Directive 2000/43/EC

 

This implements the principle of equal treatment between people irrespective of racial or ethnic origin. It gives protection against discrimination across the board, including access to goods and services.

 

The experience of those trying to avail of their rights on this legislative basis will be important in terms of framing either specific legislation in relation to older people and goods, facilities and services or, indeed, in relation to any cross-cutting directive.

 

In relation to the 2004 Directive on equal treatment between men and women in the access to and supply of goods and services, it is difficult to make a clear judgement as to its effectiveness on a European level as member states will not submit their first reports on the application of the Directive until December 2009.

 

Even so, we can identify some key issues based on the wording of the Directive itself.  One, in particular, deals with actuarial and statistical data, which may also prove one of the key battles in any legislation relating to aging and older people. It concerns access to insurance, loans, hire purchase agreements and payment by instalments, credit and credit cards, car rental…

 

An Irish report finds that “Insurers and financial institutions argue that age is an easy (and therefore cheap) way to evaluate risk and financial liability”, but there is sufficient evidence to show that this can be discriminatory.

 

 

What needs to happen in relation to age – some lessons from the South

 

 

 

By looking at the southern experience we can see some important elements of good practice and also see some pitfalls to be avoided.

 

Among the positive elements of the southern system are:

·        The possibility of taking cases on the basis of double or multiple discrimination. This is often the case in relation to older people, and the report refers to various cases about, for example, age and gender, age and disability, age and membership of the travelling community.

·        Assumed and associated discrimination - discrimination on the basis of assumptions about the individual, even if those assumptions are not correct and discrimination on the basis of persons one is in the company of.

·        Indirect discrimination, which is deemed to occur where an apparently neutral provision puts a person belonging to one of at a “particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” In relation to age discrimination, the legislation does not specify how a comparison is to be made.

·        Service providers can be held responsible for the actions of their employees unless the employer/authority took reasonable steps to prevent the employee from doing that act. In practice a work place policy on equality covers the employer in this regard.

 

Among the weaknesses are:

·        Proceedings must be instigated within two months of the alleged discriminatory act. This can have the effect of either preventing the complaint from being made or registered as not all complainants can take proceedings within this time. It can also have the effect of pushing complaints too quickly into a legal confrontation, without giving other channels of addressing grievances and seeking remedy time to take their course. This provision may be in breach of EU Directives and is open to challenge.

·        The disincentive of incurring costs in the Circuit Court

·        Maximum levels of compensation are imposed - again potentially in conflict with EU Directives.

·        Harassment is not defined as discrimination in the Equal Status Act.

·        Differences in treatment are permitted in relation to annuities, pensions, insurance policies or other matters related to the assessment of risk - a key battleground over the coming years

·        The failure of public bodies to respond to complaints. Requests for information about an issue which might lead to proceedings being taken tend to produce an immediate defensive response for the authority concerned, for fear of providing information which could lead to the success of the proceedings.

 

Conclusion

 

 

Anti discrimination measures need to go beyond employment and training and apply to access to goods and services.  We also need to ensure that measures to end discrimination address the situation faced by women as well as men in practical terms.

 

One of the problems we will come across in moving the debate forward is the nature of the current debate about how our society is being shaped. While much good work is being done at EU level on anti discrimination measures other trends are moving in a way that will make life even harder for older people.  Two trends of particular concern are the current attacks on pensions and pension rights and a number of directives that will lead to the privatisation of public services and a much poorer standard and range of public service provision in the future.

 

The “Older & Bolder Campaign” in the south has published “Towards and National Strategy for Older People in Ireland”, which points out that “This discourse is largely dominated by the economy… In an environment dominated by this kind of debate, anything that is not seen as immediately beneficial to economic growth is inevitably marginalised.” This problem identified by Professor O’Shea on the Irish level is likely to be multiplied on the EU level.