That grey area in employment law is likely to persist for the foreseeable future. In February 1996, Ian McCartney, the then opposition employment spokesman, promised that an incoming Labour government would introduce "comprehensive" legislation to make age discrimination illegal. But earlier this month, at the launch of Action on Age, a report on age discrimination by the Department for Education and Employment, the Government made it clear that although legislation had not been ruled out, it now favoured a voluntary approach.
It fell to employment minister Andrew Smith to explain the change of heart. He argued that because more than a quarter of the work-force will be over 50 by the year 2006, employers would not be able to continue to discriminate on the grounds of age indefinitely. In line with this new voluntary approach, he announced that the Government was introducing a non-statutory code of good practice on age discrimination for employers, and a ban on age limits for jobs advertised in Job Centres.
Despite these exhortations to others, the Government has so far failed to do anything about its own statutory ban on the rights of workers over 65. When James Nash was dismissed from his job last year as a warehouse manager after 27 years' service, he was told that because of his age, he had lost the right to bring a statutory claim for unfair dismissal and redundancy. The same happened to four school bus drivers working for Wandsworth Council in south London, who filed claims for unfair dismissal and age discrimination in July this year.
"I was devastated when the company wrote and said that I should retire," Mr Nash says. "But then I found out that because I was over 65, the law said that I had no rights. I brought a claim because I wanted the right to be heard."
To the surprise of Isabel Facer, employment rights worker at the Camden Tribunal and Rights Unit which is supporting Mr Nash's claim, the industrial tribunal found in his favour. It agreed that the upper age limit of 65 stipulated in domestic legislation was indirectly discriminatory against men and therefore contrary to European law. So far the Government has made no public comment, but may find that it is joined as a party to the case when the employer's appeal is heard later this year.
Because this was the first successful claim against age discrimination, all other applications - such as that of the Wandsworth Four - are likely to be adjourned pending the outcome of the appeal by Mr Nash's employer, the Mash/Roe Group Ltd.
No one knows how many claims have been lodged in total, but Isabel Facer has seen "a steady increase in queries". She expects that the appeal tribunal will refer the matter to Europe when, she says, "it will be down to this Government to objectively justify the legislation which results in people over 65 losing all their employment rights." One referral has already been made to Europe by a tribunal in Bedford, involving a claim for statutory redundancy pay by a 67-year-old woman.
Despite a climate in which age discrimination is allowed to flourish, two recent reports have found a reduction in the number of job advertisements applying an upper age limit. The Industrial Society found that, of 850 organisations, only 3 per cent always applied a limit, with 10 per cent saying that they did so sometimes.
Equal Opportunities Review, a specialist publication, looked at more than 10,000 job adverts and found that only one in 10 now uses age limits, compared with three in 10 five years ago. But instead of a crude numerical ceiling, it found that some organisations used coded language, clearly designed to deter the older worker.
Enter Linda Perham, MP for Ilford North and author of a private member's Bill to outlaw age discrimination in advertisements, which failed earlier this year. For her it was a personal campaign. "I was elected to Parliament a few weeks before my 50th birthday, but no one said I was too old to get a new job," she says. "The injustice of the situation just struck a chord with me. The Government says it would be too complicated to introduce a law against age discrimination, but there has been a law in the US since 1967, along with a number of other European countries where the ban can be found either in their legislation or their constitutional rights."
The Bill did not succeed because it failed to attract Government support, but Ms Perham insists that recent Government announcements can be attributed to the campaign for her Bill. She still believes that legislation against age discrimination is preferable to a voluntary approach, so that "employers will know where they stand".
Her argument is supported by a finding in the recent report in Equal Opportunities Review. Co-editor Gary Bowker said nine out of 10 respondents to their survey agreed that legislation is needed against age discrimination in employment. "Although the results may not be all that surprising because the majority of respondents were human resources practitioners," Mr Bowker said, "it is still interesting that almost two-thirds of the people who said `Yes' were people who may be the recruiters for their organisation."
Lawrence Davies, a solicitor at the North Lambeth Law Centre who is acting for the Wandsworth Four, agrees. "If employers in the US can cope, then why can't we?" he asks. "A voluntary code will have no effect because the worst employers will just ignore it."