Should I stay or should I go – can employees be compulsorily retired at 65?

The Employment Equality (Age) Regulations came into force on 1 October 2006. Some commentators have remarked that whilst age discrimination claims have begun to appear not as many as were initially anticipated have yet materialised. That is about to change warns DMH Stallard’s Employment Group.

The Age Regulations allow employers to fairly dismiss employees at age 65 or over by way of compulsory retirement provided that certain prescribed procedures are followed. The legitimacy of those provisions has now been cast into serious doubt.

Shortly after the Age Regulations came into force Heyday, an organisation connected with Age Concern, launched a legal challenge arguing that the compulsory retirement provisions were contrary to European law. The Heyday challenge has been referred to the European Court of Justice but progress is not expected until 2009.

Earlier this year in the case of Johns -v- Solent SD Limited, Mrs Johns brought Employment Tribunal claims for unfair dismissal and age discrimination after being retired against her wishes. Her case was struck out by an Employment Tribunal in Southampton. However the Employment Appeal Tribunal has recently ruled that Mrs Johns’ case should be stayed (put on hold) until the outcome of the Heyday challenge and any successful further appeal by Solent SD Limited. Mrs Johns’ recent successful appeal has been rapidly followed by a practice direction from the President of the Employment Tribunals ordering that all such similar claims be stayed.

Heyday has for some time been advising all employees compulsorily retired at 65 to make claims. Both public and private sector employers now face the prospect of a deluge of unfair dismissal and age discrimination claims from employees even if employers have followed the statutory retirement procedures to the letter.

Employers can no longer assume it is safe to enforce a compulsory retirement age of 65 and will need to consider carefully whether compulsory retirement is a realistic option. There is now likely to be a glut of retirement claims and a state of uncertainty is likely to persist for many years pending further legal rulings.