Information & advice

If you are forced to retire at age 65 or above you can bring a claim at the employment tribunal.  If your employer has not followed the correct retirement procedure you will have a claim for age discrimination and/or unfair dismissal. Even if your employer has followed the procedure correctly, you can still bring a claim and this should be stayed (put on hold) pending the outcome of the ‘Heyday case’.

On 6th December 2006, the High Court heard a Judicial Review brought by Heyday, part of Age Concern, challenging the ‘default retirement age’ which allows mandatory retirement of employees over age 65.  The case has been referred to the European Court of Justice (ECJ). 

On 8th November 2007 the President of the Employment Tribunals made a direction that all relevant tribunal cases should be stayed pending the decision of the ECJ. This covers all cases relating to the retirement of employees age 65 or over, where the retirement procedure has been followed.

If the ECJ agrees with Heyday’s interpretation of the European law, some parts of the age regulations would have to be amended.   Employers would not be able to rely on the ‘default retirement age’ of 65, from the date the law came into force.  So any employees over 65 who have been forced to retire at any time from 1st October 2006 can put in a claim for age discrimination and unfair dismissal in the hope that they would eventually be covered by revised legislation.  Any such claims must be submitted to the employment tribunal within three months of the date of dismissal. The decision of the ECJ is expected in late 2008 or early 2009.

What can you do if you are forced to retire?

If you are age 65 or over and you are being forced to retire by your employer, you can take the following action:

• Inform your employer of the Heyday case that has been referred to the ECJ.  Explain that there is a possibility that the ECJ will find that mandatory retirement ages are unlawful.  Explain that because the position is uncertain, the safest option for them may be to allow you to continue working.  You can raise these arguments when making a request not to retire. 
• If your request to continue working is refused you can submit a claim to the employment tribunal for age discrimination and unfair dismissal.  You must submit your claim within THREE MONTHS of the date you were dismissed.  On the claim form you should request that the claim be stayed pending the outcome of The Queen (on the application of The Incorporated Trustees of the National Council on Ageing) v The Secretary of State for Trade and Industry.
• If your employer has not followed the retirement procedure correctly, for example if they did not hold a meeting with you to discuss your request not to retire, your claim may go ahead without having to wait for the result of the ECJ case, as this is likely to be an unlawful dismissal under the law as it stands now. 

What can you do if you’re turned down for a job because you’re over 65?

You can also put in a claim to the tribunal if you have been refused a job because you are age 65 or over and the claim may be stayed pending the decision of the ECJ.  The exception under the law which allows employers to refuse to recruit people over age 65 is linked to the default retirement age, and so may also be found to be unlawful.

You should seek advice about starting a tribunal claim.

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