“Work ‘til You Drop…” (June 2009)

Age discrimination by employers when selecting candidates eligible for jobs is banned under UK discrimination laws.

You probably also know that, in most cases, it's unlawful for an employer to have a contractual or normal retirement age lower than 65. This is the default or compulsory retirement age under the UK's Employment Equality (Age) Regulations. However following a ruling in the European court of justice ("ECJ") in an age case known as Heyday, a compulsory retirement age of 65 or any compulsory retirement age, may soon be unlawful. The ECJ ruled that the UK government must show there's a legitimate reason for the compulsory retirement age otherwise it may be abolished.

The final ruling on this is matter will be made by the High Court in due course.

In the meantime, pending that ruling, under the current law employees can still be dismissed at 65 without redundancy payments or claims for unfair dismissal. However, to ensure that the dismissal is fair and not potentially discriminatory, an employer must:

• give its employees written notice of the date of their intended retirement, not more than 12 months and not less than 6 months before the retirement date;
• notify employees of the right to make a request not to retire on that date;
• consider any request made by the employee not to retire on the intended retirement date; and
• hold formal meetings and, if requested, appeal meetings to discuss any such request and/or appeal.

An employer who does not follow the statutory procedures can face a claim for unfair dismissal and age discrimination. The level of damages in discrimination has increased substantially in recent years meaning that there may be serious financial consequences for an employer in failing to deal with retirement dismissals properly, not to mention adverse publicity.

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