We have mentioned Age Concern's challenge to the Age Equality Regulations in a number of previous issues. What has been unclear up to now is how employment tribunals are to deal with retirement-based age discrimination claims, given that the retirement exemption is the main target of this challenge and the European Court of Justice (ECJ) is unlikely to give a ruling until 2009 at the earliest. The president of the employment tribunals has now issued an order stating that all current and future claims relating to the retirement exemption should be stayed pending the decision of the ECJ.
This announcement follows an Employment Appeal Tribunal (EAT) ruling a few days earlier to the effect that the Southampton employment tribunal had been wrong to dismiss a claim against a private sector employer rather than putting it on hold. Before this decision many people had thought that only claims against public sector employers should be stayed, given their different status under EU law. However, the EAT's decision is under appeal and it may be that the Court of Appeal will come to a different conclusion. If it does, the president's order will be reviewed, but in the meantime employers are left in limbo. Those wishing to rely on the exemption to dismiss an employee of 65 or over on retirement grounds will now almost certainly face a claim, even though it is likely to stay buried in the employment tribunal filing system until the decision of the ECJ is known.