Tribunals are directed to put retirement dismissal claims on hold pending the result of a challenge to the default retirement age of 65.

01.01.07

Tribunals are directed to put retirement dismissal claims on hold pending the result of a challenge to the default retirement age of 65.

Background

In terms of the Employment Equality (Age) Regulations 2006 it is fair to retire an employee at or after the age of 65 (the default retirement age) provided that the correct retirement procedures have been followed. The employee cannot challenge the reason for the dismissal in these circumstances. See April 2006 e-bulletin

The Heyday challenge

Heyday is an organisation closely associated with Age Concern and is challenging the legality of having a default retirement age. The case has been referred to the European Court of Justice and it may be 2009 before a ruling is made. A similar challenge to the provisions of Spanish law was unsuccessful. Whether the Heyday challenge will succeed will depend on whether the government can justify the need for a default retirement age. If it is unable to do so, the provisions permitting retirement at or over 65 will not apply and employers facing retirement dismissal claims will have to objectively justify their decisions.

Johns v Solent SD Limited

Mrs Johns challenged the fact that she had been retired on having reached the statutory retirement age of 65, claiming unfair dismissal and age discrimination. She accepted that her employer had followed the correct procedures in retiring her and that the reason for termination of employment was retirement, a fair reason for dismissal. The EAT agreed to her request that her claim be "stayed" (ie put on hold) pending the outcome of the Heydey case. Permission to appeal to the Court of Appeal has been granted.

Subsequently the President of Employment Tribunals (England and Wales) issued a direction ordering all age discrimination claims dealing with the same issue to be stayed. There is no equivalent practice direction for Scotland and cases here will be referred to tribunal chairmen to decide on an individual basis.

In practice

We would not recommend altering normal retirement practice, bearing in mind that Johns v Solent is being appealed and that the outcome of the Heyday challenge is uncertain. However, until this issue is finally resolved be aware that employees being retired at 65 or above may bring tribunal claims.

The duty to inform and the duty to consider procedures in the Regulations should continue to be adhered to - claims for failure to follow the retirement procedures are unaffected by the Heyday and Johns v Solent cases.