Default Retirement Age -
Regulation 30 of the 2006 Age Discrimination Regulations states that "it is not unlawful for an employer to dismiss an employee who is at or over the age of 65 where the reason for the dismissal is retirement". This Regulation introduces a default retirement age of 65. The inclusion of such a term provides a degree of assurance to employers. So long as the appropriate procedures are followed, you can dismisss an employee who has reached the age of 65 without having to outline the reasons as to why you wish to retire the employee.
[/summary] [content]Default Retirement Age -
Regulation 30 of the 2006 Age Discrimination Regulations states that "it is not unlawful for an employer to dismiss an employee who is at or over the age of 65 where the reason for the dismissal is retirement". This Regulation introduces a default retirement age of 65. The inclusion of such a term provides a degree of assurance to employers. So long as the appropriate procedures are followed, you can dismisss an employee who has reached the age of 65 without having to outline the reasons as to why you wish to retire the employee.
Challenge by HEYDAY -
Earlier this year, the Age Concern Group, HEYDAY, sought to challenge the terms of Regulation 30. The basis of their argument was that Regulation 30 did not properly implement the provisions of EU law and as such was unlawful. The matter has now been referred to the European Court of Justice, but it is likely to be some time before their judgement will be issued.
A recent Employment Appeal Tribunal decision -
In Jones v Solent SD Limited, Mr Jones brought a claim to the Employment Tribunal alleging that he had been unfairly dismissed. His employers had sought to dismiss him by reason of retirement following on from his turning 65. In following this course of action, Mr Jones employers had complied with the procedures which are laid down by the Age Discrimination Regulations. Accordingly, they had acted in complete accordance with the law a it currently stands. However, it was argued on behalf of Mr Jones that his application to the Tribunal should be sisted (put on hold) until such times as the European Court of Justice issued its judgement on whether or not the default retirement age of 65 is lawful (the HEYDAY challenge). The Employment Appeal Tribunal were willing to grant the application made by Mr Jones.
Following this judgement, the Employment Tribunal Offices for England and Wales have issued a direction that all claims which are raised under Regulation 30 of the Age Discrimination Regulations should be accepted by the Tribunal, and thereafter put on hold until such times as the European Court of Justice have made its determination with regards to the legality of the provision. It is likely that the Scottish Employment Tribunals will follow suit.
Implications for Employers -
These recent developments raise a number of questions:
Our Advice -
There is always a potential risk where there is any uncertainty. Our advice to employers is to carry on properly retiring employees in line with the law as it stands.
We will be keeping a close eye on developments and will let you know should our advice change.
For more information, please contact the head of our Employment Unit, Marie Macdonald.