Information & advice

Nadia is aged 65. She has been forced to retire from her job in a coffee shop. She was given six months’ notice‚ in writing‚ of the intended date of retirement and of her right to request not to retire. The duty to consider procedure was followed correctly‚ including the appeal procedure. The employer told Nadia in the appeal meeting that they couldn’t keep her on‚ saying: ‘it doesn’t look good for the customers – you don’t fit in with the image we want to promote'.

1. Is there a potential age discrimination case?

Is retirement the reason for dismissal?

Nadia was over the default retirement age of 65 at the time of dismissal. Check that there is no higher normal retirement age‚ although this is unlikely in this case.

She was given the correct notice of at least six months. 

Retirement will therefore be the reason for the dismissal.  It is therefore covered by the default retirement age exception (in Regulation 30) and Nadia cannot argue that the dismissal itself is unlawful age discrimination.  

Has the client made a request not to retire‚ and has the duty to consider procedure been followed?

Nadia made a request to continue working and the employer followed the duty to consider procedure correctly.   She does not therefore have a claim for unfair dismissal.

Is there a potential claim?

Even though the dismissal itself does not amount to unlawful age discrimination or unfair dismissal‚ there is evidence of age discrimination in the comments made by the employer at the appeal meeting.  It is arguable that this could form the basis of an age discrimination claim as the exception in Regulation 30‚ covering retirement above age 65‚ only applies to the dismissal itself - not any other part of the retirement process (see page 28 of ‘Making a Case Against Age Discrimination’). 

This interpretation of the Regulations will have to be tested at the tribunals and courts‚ as it appears to be contrary to the intention behind the Regulations.  But‚ it is arguable that Nadia’s request to continue working was refused because the employer believed she looked too old to create the right image for the business – i.e. on grounds of her age or perceived age.  This would amount to direct discrimination. 

There may also be a claim for harassment. Did the employer’s conduct have the purpose or effect of creating an intimidating‚ hostile‚ humiliating etc. environment for Nadia?  It is arguable in this case that it would be reasonable to conclude that the employer’s comments amounted to harassment. 

Is the discrimination unlawful?

It would be difficult to show that the discrimination was objectively justified.  The aim the employer is pursuing would itself be tainted by age discrimination and therefore is unlikely to be seen to be legitimate. 

2.  Beginning action on a case

Grievance procedure

The grievance procedure must be followed before a complaint of age discrimination or harassment can be made at the employment tribunal.  The grievance letter should include details of what was said during the appeal meeting and that the employer’s conduct amounted to direct discrimination and harassment.

Questionnaire procedure

Nadia could use the questionnaire procedure to ask what the employer’s reason was for refusing her request to continue working.  Although the employer has no obligation under the duty to consider procedure to give reasons for their decision‚ if they fail to answer the question when put to them in a questionnaire‚ the tribunal can be asked to draw an inference that the reason was discriminatory. 

3.  Taking a case

Time limits

Nadia should lodge a grievance with her employer within the first three months of the date of discrimination. The time limit for the tribunal claim for direct discrimination and harassment would then be extended by a further three months and so the ET1 must be submitted within six months of the date of discrimination. 

In this case the harassment occurred on the date of the meeting and the direct discrimination occurred when the request was refused (not on the date of dismissal).  As the date of the employer’s decision to refuse the request could be disputed‚ it would be advisable to submit both claims together‚ calculating the time limit from the date of the meeting. 

Submitting the ET1

The ET1 should state that the employer’s decision to refuse Nadia’s request to continue working amounted to direct age discrimination in that she has been treated less favourably than someone who appeared to be younger would have been treated.  The ET1 should also clearly state if a claim is also being made for harassment.

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