The president of the employment tribunals service has announced that all cases relating to dismissal on grounds of retirement, under regulation 30 of the age discrimination laws, must be ‘stayed’ pending the outcome of the Heyday case, expected sometime in 2009.
The announcement is a direct repercussion of a recent employment appeal tribunal decision in the Johns v Solent case, which stated that Mrs. Johns’ retirement-based claim should be stayed pending the outcome of the Heyday challenge.
This means that anyone who has been through the retirement process and forced to retire can lodge a complaint. Their rights will be preserved and the complaint held until the European Court of Justice has reached a decision on Heyday’s challenge to the government.
Rachel Dineley, employment partner and head of the national diversity and discrimination unit at law firm Beachcroft LLP, commented that the decision may come as an unexpected and unwelcome surprise to employers.
“This recent decision muddies the retirement age waters once again. It gives employees, who are unhappy at being required to retire at or after 65, fresh encouragement to commence proceedings against their employer, particularly as it will require little time and effort to lodge a claim, which will then be stayed until the 2009 Heyday decision.”
She added that employers will need to re-evaluate any policy they have to retire employees. “We may find that employers will now rely on other good reasons for dismissal, such as capability, misconduct or redundancy, and abandon any policy of retiring at 65 altogether, allowing employees to work as long as they are up to the job, at least until the Heyday case decision has been reached.”
Chris Ball, chief executive of the Age and Employment Network, said: “Tribunals could be hard-pressed to deal with a large volume of claims resulting from this decision. The best – and most sensible – response would be for employers to agree all requests to work beyond 65 and make this policy well-known to employees.”
Heyday, an organisation backed by Age Concern, is challenging the national default retirement age of 65 set by the UK government in the Employment Equality (Age) Regulations 2006, and is currently awaiting trial.