Enforced Retirement May Still Be Open To Challenge By Employees Following European Court Judgment

Employment Equality Regulations amendments

06.03.2009

A leading Birmingham employment law expert has advised that a European Court judgement on a case brought by charity Age Concern could yet result in amendments to the Employment Equality (Age) Regulations 2006. These may extend the right of employees to claim that their enforced retirement was discriminatory on grounds of their age.

Fergal Dowling, partner and head of employment law at the Birmingham offices of leading law firm Irwin Mitchell, which is acting for Age Concern in the legal challenge, said the judgment by the European Court of Justice meant that the Government will now have to justify statutory retirement procedures and statutory default retirement age of 65 in the High Court, where it will have to meet a ’high standard of proof’.

The case will now return to the High Court in London, meaning age discrimination cases against employers are likely to remain on hold until a final decision is handed down upon whether or not the statutory retirement procedures are safe to use.  And Fergal said that meant that all employers would need to be careful when looking to apply statutory retirement rules until the High Court makes its judgement.

Fergal said: "Employers should continue to view the statutory retirement procedures with caution. They were intended to provide a safe method of dismissing employees who had reached the default retirement age and were an absolute defence to claims of unfair dismissal as long as the procedures were properly followed.

"What does seem clear is that employers who had used the statutory retirement procedures as a means of reducing employee numbers or as a method of encouraging staff turnover could now potentially face successful claims of age discrimination against them.

"The law needed clarification, as neither employers nor older employees knew where they stood. The ECJ has made it clear that an employer’s circumstances cannot be used to justify discrimination on the grounds of age.

"The decision of the ECJ will guide the High Court when it comes to consider whether the UK Government can justify the default retirement age of 65."