The Employment Appeal Tribunal has rejected a challenge tothe upper age limit of 65 for claiming unfair dismissal and redundancy paymentsthree years ahead of the implementation date for the new law on agediscrimination. Melanie Thomas reportsAmidst the flurry of new employment laws either implemented or announcedthis year, the one that probably stands out more than any other is theprohibition on age discrimination, due to be introduced at the end of 2006. The government is consulting on how to implement the European Commissionprohibition on age discrimination, including how to deal with the concept of acompulsory retirement age…. As the law stands at the moment, employees can beforced to retire either at the retirement age set by their employer, or thedefault age of 65. However, in parallel with the legislative process, there has been along-running piece of litigation about the legality of the age cap of 65 – theargument being that it is already unlawful because it indirectly discriminatesagainst men, as more men than women want to work past the age of 65. The Rutherford decision The case was originally brought by Mr Rutherford, who was 67 when he wasmade redundant. He made a claim against his employer for unfair dismissal and aredundancy payment. In the course of that claim, he argued that the age limitof 65 was contrary to EC law because it discriminated indirectly against men. In August 1999, the Stratford Employment Tribunal agreed that it did. TheEAT, however, disagreed and sent the case back to Stratford to be heard again.The government joined the second round of litigation last year, but failed topersuade the Stratford Tribunal to reach a different decision. It then appealed to the EAT, which again hasjust overruled the Tribunal on the grounds that it did not apply the lawcorrectly. The EAT made the following findings:– The Tribunal had not performed the right statistical analysis First, it had made a mistake in looking only at the statistics for men andwomen aged 55-74 for whom retirement “had real meaning”, as opposedto everyone in the workforce (aged 16-74) who could potentially benefit fromthe employment protection rights in question. Secondly, the Tribunal had incorrectly compared the proportions of menand women who were not protected by the law (the over-65s), rather than thosewho were (the under-65s)– The Tribunal had also been wrong in rejecting the Government’sjustification defence, which was that the age cap was justified by underlyingsocial policy considerations, including the idea that someone who had reachedretirement age did not need the same employment protection rights as a youngerperson because he or she would have a diminished expectation of continuedemploymentThe Tribunal rejected this justification because it was inextricably linkedto the state pension age, which is itself discriminatory. This produced anomalies: for example, womenaged 60-64 are entitled to a state pension and a redundancy payment, while menare not. However, the EAT found that any anomalies were the result of theunequal state pension age (which was still lawful pending the gradualequalisation sanctioned by EC law), and not the design of the employment rightsbeing challenged. As a result, thegovernment’s justification was not itself tainted by sex discrimination – The EAT also accepted the Government’s other social policy arguments: that compulsory retirement allowed employersboth to meet the legitimate expectations of younger employees for advancementand to plan for future recruitment and HR management needs. Importantly, the age limit protected thedignity of older employees because it allowed employers to retire them, ratherthan being forced to dismiss them for performance-related reasons. Impact of the decision UK employers are no doubt breathing a sigh of relief that they are stillable to rely on compulsory retirement ages in planning their human resourceneeds. However, the case is a shotacross the bows for employers that have not already started to think about howthey are going to deal with the changes being mooted in the Government’sconsultation and, in particular, whether they are going to be able to muster anargument that their particular business environment has demands that canjustify setting a compulsory retirement age. Aside from that, the potentially more long-lasting impact of this judgmentlies in its analysis of the law on indirect sex discrimination. In a footnoteto its judgment, the EAT said this was really a claim about age discriminationthat the applicants tried to shoehorn into the contours of a sex discriminationcase. That may be so, but the EAT’sreasons for rejecting that attempt do nothing to remove the impression that thelaw on indirect discrimination is an impenetrable quagmire of legal nuance,pragmatic compromise and statistical gymnastics.Melanie Thomas is a solicitor with Lovells’ Employment Group Related posts:No related photos. Previous Article Next Article The dawning of a new ageOn 1 Nov 2003 in Personnel Today Comments are closed.
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