Publication of the 2007 employment tribunal statistics has revealed that nearly 1,000 age discrimination complaints were lodged in the six months to March 2007. That’s well over the number of sexual orientation or religion claims lodged in a full year, but still dwarfed by the 44,000-odd unfair dismissal or equal pay claims lodged in that period.

But few cases have emerged

Although there are significant numbers in the pipeline, only four cases have been reported. The one that has received the most publicity is the unsuccessful attempt by a former partner at a law firm to challenge a change to his retirement benefits. This case is hardly typical, but it is an interesting example of how an employer with a balanced and carefully thought out policy can justify direct age discrimination (something that is not possible with other types of discrimination) where there is adequate consultation and it emerges as the “least bad” option.

Meanwhile the retirement exemption is challenged

Heyday, an organisation linked to Age Concern, is seeking to overturn some provisions of the Age Equality Regulations, including the retirement exemption. The result of this challenge is anxiously awaited, although not expected until 2009, as it attacks the key employer-friendly feature of the new legislation, which allows compulsory retirement at age 65 without any sanction, provided certain procedural requirements are met. The European Court of Justice has recently dealt a blow to Heyday’s hopes by ruling that a similar provision in Spanish Law did not infringe the Employment Framework Directive.

And retirement related claims pile up

Claimants’ advisers have no choice but to lodge claims, even though on the face of it the employer is entitled to rely on the retirement exemption. A recent Employment Appeal Tribunal (EAT) decision has confirmed that all such claims should be put on hold pending the result of the Heyday challenge. This may not be the last word on the matter, as the employers are likely to appeal to the Court of Appeal. It is arguable that the EAT’s decision does not take adequate account of the fact that the provisions of an EU directive would not normally be directly effective against private sector employers, but only against “emanations of the State”. If that is right, then only claims against public sector employers should be put on hold and those against private sector employers should be dismissed.