Age Discrimination

New employment legislation almost inevitably gives rise to challenge on its application, and the new law on Age Discrimination brought in to comply with a European Directive is no exception.  In particular, the circumstances in which an employer can compulsorily retire an employee have been subject to much debate and challenge.  This is an important issue for employers who are naturally looking for some certainty from the law, rather than confusion.

However, this is a changing area of law and one subject to decisions both in this country and in Europe.  In summary form, the current status of compulsory retirement of employees at the normal retirement age of 65 is as follows:

• Under the Employment Equality Age Regulations 2006, an employer may compulsorily retire an employee, as long as it is not before the normal retirement age or age 65, provided the employer follows a set notice procedure. 

• Does this comply with the EC Equal Treatment Framework Directive?

• This is the issue raised by the Heyday case and also in a further case of Johns -v- Solent SD Limited.  The case of Johns was originally struck out as having no reasonable prospects of success.  The EAT said that was wrong and it should be stayed pending the ECJ’s decision in the Heyday case.

• The decision not to strike out the Johns case is now being appealed to the Court of Appeal.  Pending the decision of the Court of Appeal, the President of the Employment Tribunal has stated that all current and future claims arising out of this issue brought in the Tribunal should be stayed. 

• This gives rise to uncertainty for employers.  If an employer forcibly retires an employee in accordance with the Retirement Provisions a claim may be lodged, and if the retirement provisions are found to be unlawful from the outset, employers would have to justify their decisions rather than rely on the retirement procedures. 

Everybody appreciates the potential problems that this raises for employers but the EAT said that that was no good reason for striking out the claims in the meantime. 

We will continue to keep you posted on further developments in this area.

Carol Shaw
Partner
Employment Department