Age discrimination still exists, but do employers really benefit from forcing older workers to retire?

In March 1949, when Emile Ratelband was born, his home country of the Netherlands was still trying to hold on to its former colony of the Dutch East Indies by military force. But Emile Ratelband would have preferred to be born in March 1969, when John Lennon married Yoko Ono and spent his honeymoon in a bed in Amsterdam, and is trying to change his age by law.

Ratelband, who has taken his case to court in the Netherlands, argues that his official age of 69 does not reflect his emotional state. He argues that his request to change it is no different to those who feel they have been born in the wrong gender.

Playing the provocateur

There are, of course, plenty of reasons not to take Ratelband too seriously. For a start, the driving motivation behind his desire to overturn it appears to be his failure to land dates on Tinder, a dating app (he describes himself as a “young god”). And in his choice of analogies, he is only the latest provocateur to downplay the experience of transgender people, following in the footsteps of the Labour party member who tried to become a woman’s officer by claiming he identified as a woman on Wednesdays, and the women who donned fake beards to enter an all-male swimming pool.

Nevertheless, Emile “young god” Ratelband has a point.

“When I’m 69, I am limited. If I’m 49, then I can buy a new house, drive a different car,” he told the court. “I can take up more work.” In the UK, as in the Netherlands, allowing people to do or not do something depending on their age is a kind of discrimination that is rarely challenged. Most mortgage lenders cap the age at which you can finish paying back the loan at 70 to 85, which effectively means your chance of buying a home ends when you reach your fifties. Until 2011, employers could force over 65s to retire – now they need a good reason, although certain jobs are automatically exempt, such as commercial pilots (mandatory retirement age of 65) and police officers (60). However, it seems some employers still find it useful to justify a set retirement age – a group of academics are currently challenging an Oxford University policy to force them to retire at the age of 67.

Justifying ageism in the workplace

Then there is the day-to-day age discrimination at work. The Equality Act 2010 actually allows for some discrimination – employers can make decisions based on someone’s age if it is objectively justified and proportionate. Even so, it seems age discrimination goes far beyond this. Take the absence of older women on TV. Or the job ads targeted at specific (young) demographics. Or the banker who was made redundant to make room for a younger colleague. Or the countless articles on the internet addressing middle-aged workers’ fears that they are “too old” for a new career.

The arguments in favour of discriminating based on age are varied. On the one hand, in the days of more generous workplace pensions, a fixed retirement age could be something of an award for good service. On the other, age has often been used as a proxy for capability. Where mandatory retirement has continued, it has tended to be in jobs that require physical fitness or high levels of concentration (surgeons aren’t forced to retire, but many think they should be). Departing older staff also make way for a new, cheaper generation: in 2016, Spanish telecoms giant Telefonica offered all employees over the age of 53 the chance to stay at home on two-thirds of their salary in a bid to “transform and simplify” the business. In the case of the Oxford academics, one of the defenders of the forced retirement policy demanded: “How can you look your young post-docs and doctoral students in the eye, when by clinging to your post you are denying them an opportunity that could be a lifeline?”

Putting aside the ethics of discriminating on the basis of age, in an era of advanced healthcare, the measure itself looks outdated and crude. In his argument to the Dutch courts, Emile Ratelband said doctors had told him he had the body of a 45-year-old man. It is certainly true that life expectancy has risen dramatically since the idea of retirement first became standardised. Aging too has become a more varied experience: for every case of early onset dementia, there is an octogenarian athlete, some competing at international levels. In the UK, the Prime Minister is 62, and the leader of the opposition is 69 – but both are spring chickens compared to the 93-year-old Prime Minister of Malaysia. Is your birth date really such a determinant of when you will be at your most powerful or influential?

>See also: Age discrimination in the workplace is slowly becoming passe

Of course, there is something comfortingly simple about measuring potential by age. “One man in his time plays many parts,” says Jacques in Shakespeare’s play As You Like It, before going on to detail them as the infant, the “whining schoolboy”, the lover, the soldier, the justice, “the lean and slippered pantaloon”, and finally, the “second childishness”. Hinduism divides life into four stages. But for employers, this may mean missing out on the person who has seen four economic cycles, or understands the “grey pound” consumers, or simply has achieved their own ambitions and wishes to mentor the next generation, if they are given the chance. And this is not necessarily at the expense of younger workers: studies suggest job satisfaction among younger workers is higher in workplaces with a high proportion of older workers as well.

Mid-life MOT

There are better ways to measure capability than age alone. A 2018 report by a committee of MPs recommended a “mid-life MOT”, where 50-year-old workers are offered a career review, and advice for planning for the future. Employers and government alike could invest in access to lifelong learning and apprenticeships for adults. Flexible working can keep older people participating in the jobs market for longer.

Ultimately, as the judge pointed out to Mr Ratelband, most of us would think twice about erasing two decades of our lives, and all the memories that came with them, even if it does mean acknowledging we are getting on a bit. But with over 65s expected to make up a quarter of the population by 2041, employers will have to adapt to an older workforce at some point. That means grappling with the questions of what being old actually means, and whether it’s relevant to a job. Better to start working out an answer in 2018, rather than 2038.

>See also: The House of Commons’ Older People and Employment report.