Information & advice

Employees over age 65 who are forced to retire against their wishes may now be able to start claims in the employment tribunal.

On 6th December 2006‚ the High Court heard a Judicial Review brought by Heyday‚ the membership organisation supported by Age Concern‚ challenging the provisions of the new law on age discrimination (the Employment Equality (Age) Regulations 2006) which allow mandatory retirement of employees over age 65.   The Judge agreed to refer the case to the European Court of Justice.  This has implications for all employees who are forced to retire against their wishes at any time from 1st October 2006.

If the European Court of Justice agrees with Heyday’s interpretation of the European Directive which the Regulations were intended to implement‚ the Regulations would have to be amended‚ to comply with this interpretation.   This would mean that some parts of the current Regulations would be treated as being unlawful.  Employers would therefore not be able to rely on the default retirement age of 65 covering retirement dismissals from the date the Regulations came into force

So any employees over 65 who have been forced to retire at any time from 1st October 2006 can put in claims for age discrimination and unfair dismissal in the hope that their claims 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 and could be kept on hold (‘stayed’) until the decision of the ECJ.

What should advisers tell clients?

• Clients age 65 or over who are being retired against their wishes should inform their employers of the Heyday case and explain the uncertainty over the legality of mandatory retirements.  Explain that the safest option for employers may be to allow employees to continue working.
• Clients should make a request not to retire‚ following the procedure in the Regulations and putting forward arguments for the employer to allow them to continue working.
• Be aware of the TIME LIMIT for submitting a claim to the employment tribunal.  For age discrimination and unfair dismissal the claim must be submitted within three months of the date of dismissal.  So‚ for people dismissed on 1st October 2006‚ the claim must be submitted by 31st December 2006.
• Clients can submit a claim for age discrimination and unfair dismissal and state the following on the claim form:
  “I request that‚ if deemed appropriate‚ this 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.”
• Cases where the employer has followed the procedures in the Regulations‚ (or has only made slight errors) may be stayed pending the decision of the ECJ. 
• Claims where employers retire an employee over age 65 without following the retirement procedures correctly can already be unlawful age discrimination and unfair dismissal under the current Regulations.  These cases should not be affected.  (For details of the current position on retirement‚ the procedural requirements and the position of people under age 65 visit our section on the age discrimination law.
• The reference to the ECJ could also affect claims of direct discrimination where there is a question of whether the employer’s actions are objectively justified.  These cases may also be stayed pending the decision of the ECJ.  Cases where the discrimination cannot be justified even under the wide test provided by the Regulations in their current form should not be affected and should hopefully go ahead (although there is a risk that these could also be stayed). These cases should be submitted as usual. 
• The Regulations currently allow employers to refuse to recruit people who are within 6 months of their 65th birthday‚ because of their age.  People who have applied for jobs and been turned down by employers relying on this exception can also submit claims to the tribunal (within 3 months of the date they were rejected) and ask for the claim to be stayed pending the decision of the ECJ. 
• In some cases it may be appropriate to use the questionnaire procedure under the Regulations to request information from the employer‚ to obtain evidence that may not be easily available at a later date‚ and to put them on notice that they must not destroy documents which may relevant.
• It could take between 12 months and 2 years before the ECJ gives its decision.  If the ECJ agrees with the Government’s interpretation of the Directive‚ the cases that have been stayed would not succeed.  If the ECJ agrees with Heyday’s interpretation‚ these cases would be heard and may result in compensation being awarded to the claimant – although there is no guarantee that each individual claim would succeed.  Clients should be advised that the position is very uncertain.
• Clients should be made aware of the position regarding costs in the tribunal:

(a) The tribunals have a power to award costs in claims which are misconceived or which are unreasonably conducted. 
(b)  It is not misconceived or unreasonable to bring a claim in order to preserve the client's position‚ pending the decision of the ECJ. 
(c) Once the ECJ has ruled on the questions‚ clients should review whether to continue with their case. Clients should therefore be advised to take further advice once the outcome of the ECJ reference is known. Each case will be considered individually by the tribunal if the question of costs arises.

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