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Age Discrimination

From 1 October 2006, it became unlawful for an employer to discriminate against a person on the grounds of age. So, for example, advertising for a ‘mature’, ‘youthful’ or ‘highly experienced’ employee is now potentially unlawful, as is making all a company’s employees over the age of 50 or under the age of 21 redundant, unless the employer can provide justification for these approaches.

This legislation does allow employers to retire staff at the age of 65, provided that the employer follows correct procedures. While employees can ask to remain in work after 65, employers are free to refuse and do not have to give reasons for doing so. Retirement at 65 is therefore to all intents and purposes compulsory and non-discriminatory. This retirement ‘get-out’ was recently challenged in the European Court of Justice by Heyday, an arm of the charity Age Concern.

The European Court confirmed that a compulsory retirement age is potentially lawful. The High Court will now consider whether the government’s social policy aims in permitting retirement at 65 are legitimate, and it is expected that retirement at 65 will be upheld.

However, many former employees are submitting claims to the Employment Tribunal alleging that their retirement at 65 was compulsory. All these claims are being stayed, that is put on hold pending the High Court’s ruling. If the High Court upholds retirement at 65, those claims will not be pursued. However, other rulings by the Court could potentially allow all such stayed claims (or possibly only the claims of public sector workers) to be heard by the Tribunals. To avoid this some employers are justifying all retirement dismissals while others are compromising out retiring employees.

The government has recently stated that it will bring forward its intended review of retirement age from 2011 to 2010, so it is still possible that an age for compulsory retirement will disappear in the near future or will be increased to 70.

If you have any queries on this or any other areas of employment law, please contact Caroline Johnstone.