Information & advice

Emir is aged 68. His employer’s business is closing down and all staff are being made redundant. 

He has been told that he is not entitled to a redundancy payment because he will be retiring‚ rather than being made redundant. His employer gave him four months’ notice of his retirement date‚ which is the same date that the other employees’ redundancy dismissals will take place. 

The duty to consider procedure has been followed‚ including an appeal meeting.  Emir is due to retire in two months.

1. Is there a potential age discrimination claim?

Is retirement the reason for dismissal?

Emir will be over the default retirement age of 65 at the time of the dismissal.  Check that there is no higher normal retirement age for the position‚ when most employees are required to retire in practice.

The employer has not given at least six months’ notice as required by the Regulations.  It will therefore be for the tribunal to decide whether retirement was the reason for the dismissal or not. 

Emir should argue that the reason for the dismissal was redundancy and not retirement.  He should rely on the evidence that the business has closed down and his job no longer exists. 

The tribunal is required to take into consideration in particular the following factors:

• Whether the employer has notified the employee in writing of the intended date of retirement and right to request not to retire‚ at least 14 days before the intended date.
• If they have given more than 14 days notice‚ how much notice was given?
• Has the duty to consider procedure been followed?

So in this case the tribunal would take into consideration that the employer gave four months’ notice and did proceed to follow the duty to consider procedure.  The employer will therefore be in a better position than if they had given less notice and had not followed the duty to consider procedure.  But it should be argued that the failure to give six months’ notice was due to the closure of the business – the employer did not have time to give the full six months’ notice.  This points to the reason for the dismissal being redundancy‚ not a retirement that the employer had planned unrelated to the closure of the business.

It remains to be seen how tribunals will approach the question of whether a dismissal is really for the reason of retirement in these circumstances.

Note that if Emir had been given between six and twelve months’ notice‚ retirement would automatically be the reason for the dismissal. He would not have the opportunity to argue that it was actually a dismissal for redundancy and would not be entitled to a redundancy payment.

Is there a potential claim?

Emir has the following potential claims:

i) compensation for late notice
ii) direct age discrimination
iii) unfair dismissal

Emir can make a claim for compensation of up to eight weeks’ pay for getting less than six months’ notice of his retirement date.  It is arguable that this claim should fail if the reason for the dismissal is found to be redundancy rather than retirement‚ as the duty to give at least six months’ notice only applies where the employer intends to ‘retire’ the employee.  It will be for the tribunal to interpret the Regulations on this point.

If the tribunal finds that retirement is not the reason for the dismissal‚ the dismissal would not be covered by the Regulation 30 exception for retirement‚ and would therefore be likely to amount to unlawful age discrimination.  Emir has suffered a detriment in that he has been dismissed without receiving a redundancy payment‚ and this was because of his age.  He can compare himself with colleagues aged under 65 who did receive a redundancy payment.  It is difficult to see how the employer could justify this treatment‚ as the denial of a redundancy payment is not likely to be proportionate‚ even if a legitimate aim could be established.

This is also likely to be an unfair dismissal‚ as although redundancy is a potentially fair reason for dismissal‚ the employer has not followed the redundancy procedure in dismissing Emir.

2. Beginning action of a case

Grievance procedure

Emir does not have to use the grievance procedure before submitting an ET1‚ as this is not required for claims for unfair dismissal or a discriminatory dismissal.

Questionnaire procedure
Emir could use the questionnaire procedure to obtain evidence that the dismissal was actually a redundancy.  The following questions are examples of what could be asked:

• What was the reason for Emir’s dismissal?
• When was the decision to dismiss Emir made?
• Why was Emir’s request to continue working refused?
• Was Emir’s position redundant following his dismissal?

3. Taking a case

Time limits

The claim for compensation for receiving less than six months’ notice must be submitted within three months of the date when Emir knew of the intended retirement date (see page 34 of ‘Making a Case Against Age Discrimination’ for details of the time limit for this type of claim). This ET1 must therefore be submitted within the first three months following notice being given to him and this will be before he is actually dismissed.  Emir will have to submit separate ET1 forms – one for the claim for late notice and one for the claims that can only be brought after his dismissal (for unfair dismissal and for a discriminatory dismissal).  The claims can then be joined to be heard at a joint hearing if necessary.

The claims for unfair dismissal and age discrimination must be brought within three months of the date of dismissal.

ET1

The ET1 relating to unfair dismissal and age discrimination should include a request that‚ if retirement is found to be the reason for the dismissal‚ the claims be stayed pending the outcome of the Heyday case [link to update in new section] challenging the default retirement age.  This is because if the tribunal accepts that retirement was the reason for dismissal‚ the exception relating to retirement (Regulation 30) will apply and the claims for age discrimination and unfair dismissal will fail.  However‚ if the default retirement age is found to be unlawful as a result of the decision in the Heyday case‚ the claims could ultimately succeed‚ providing they had been stayed.   The ET1 should therefore include a request that‚ if appropriate 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. 

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