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Compulsory retirement under threat

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The Employers’ Forum on Age has responded to a recent tribunal case which could allow employees working beyond retirement age the same rights as younger workers.

The case was brought by law firm Charles Russell and the Islington Law Centre after two men, aged 71 and 74, claimed they had been unfairly dismissed from their jobs in the clothing industry. They believed they had been sacked for being too old.

The pair were blocked under UK employment law which places an upper age limit on pursuing unfair dismissal or redundancy claims. This case was therefore brought on the basis of sex discrimination arguing that the upper age limit to bring unfair dismissal and redundancy claims in the Employment Rights Act has a disparate impact on men (more men work beyond retirement age than women) and was, therefore, contrary to EC law. On this basis, there was a unanimous tribunal decision to allow the unfair dismissal and redundancy cases to proceed.

According to the EFA, if upheld on appeal, this ruling would mean that people working beyond retirement age have the same employment rights and protections afforded to younger workers, and even that the automatic enforced retirement of staff on their 65th birthday is potentially illegal.

This means employees will be able to bring claims for unfair dismissal and redundancy payments after the age of 65 before 2006. Employers may therefore be vulnerable to claims from older workers NOW.

Paul Quain the barrister representing Rutherford said: “Employers must make clear a retirement age in employee’s job contracts and be able it justify it at tribunal”.

Picking up on this point, Sam Mercer, campaign director of the Employers Forum on Age, said:

“Offering all employees the same rights regardless of age is something that the majority of EFA members welcome. However, this ruling may have even wider implications than first assumed, namely around justifying retirement. Employers already operating a contractual employment age, which they are able to justify, may not be affected. But this has to be considered in the context of the current debate around compulsory retirement ages and future age laws. To date employers have found it difficult to identify any significant justifications for retirement ages.

“It is therefore likely that there will be calls for legislation to take account of this ruling and this increases the likelihood of future legal challenge to any specified retirement age. The significance of this case vis a vis redundancy must also be considered, current statutory redundancy legislation determines packages based on both age and length of service. As individuals work for longer – past 65 – employers may be faced with increasingly large redundancy compensation bills. This neatly demonstrates how future age legislation impacts on other areas of employment law and has the potential to challenge long established employment practice.

“The Rutherford ruling should not be underplayed as it may mark the beginning of the end of compulsory retirement forcing exit from work on the basis of age”.

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