Information & advice

Sarah has been given six months’ notice that her retirement date will be her 65th birthday.  She was also given six months’ notice of her right to request staying on. 

She made a request and the employer followed the duty to consider procedure correctly‚ including holding an appeal meeting.  Her request to continue working has been turned down and she is due to retire in one month. 

Her employer has told her that it is their policy to retire all employees at age 65 unless there are exceptional reasons for keeping someone on.

1. Is there a potential age discrimination case?

Is retirement the reason for dismissal?

Sarah will be age 65 at the time of the dismissal.  It appears that 65 is the normal retirement age for the position but check with Sarah that this is the age at which most employees are required to retire in practice.

The employer has given six months’ notice.

Therefore retirement will be taken as the reason for dismissal. This dismissal would be covered by the Regulation 30 exception for retirements and so would not amount to unlawful age discrimination under the current Regulations. 

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

Sarah 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 under the current Regulations.

Is there a potential claim?

This is a dismissal for retirement‚ at the default retirement age of 65‚ and the employer has followed the correct procedure as set out in the Regulations. Therefore‚ as the law is currently drafted‚ the dismissal would not amount to age discrimination or unfair dismissal.

However‚ Sarah could submit a claim to the tribunal for age discrimination and unfair dismissal‚ asking for the claim to be put on hold pending the decision of the European Court of Justice in the case brought by Heyday‚ part of Age Concern‚ challenging the default retirement age.  Depending on the outcome of the case‚ Regulation 30 could be found to be unlawful and employers would not be able to rely on the default retirement age of 65 for dismissals from 1st October 2006.

2. Beginning action on a case

Grievance procedure

Sarah is not required to follow the grievance procedure in this case‚ as the claim only relates to the dismissal (see page 42 of ‘Making a Case Against Age Discrimination’ for details of when the grievance procedure applies).

3. Taking a case

Time limits

The claim must be submitted within three months of the date of dismissal.

Submitting the ET1

The ET1 should set out the facts of the case‚ including that the employer is relying on the Regulation 30 exception to dismiss her on grounds of her age.  The ET1 should include a request that the case 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.  More information on advising in these circumstances...

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