Of course, the slow machinations of the European justice system means I now post on this subject on an annual basis only. In 2006 the proceedings were started in the English High Court, in 2007 the reference was made to the ECJ, and all related tribunal claims stayed, in 2008 the Advocate General announced his opinion, in March 2009 the ECJ promulgated its decision, referring the question of whether or not our regulations were lawful back to the English court.

See my post on the AG’s opinion for the legal background, but the most important question the High Court had to decide was whether the UK’s default retirement age of 65 (after which you can dismiss a person without them having any recourse to age discrimination remedies) was lawful. The message back from the ECJ had been that it could be, if sufficiently justified by “legitimate employment policy, labour market and vocational training objectives”.

The very brief answer is that yes, it was, but would not be so now. This means that the default retirement age (DRA) stands in respect of any claims brought over it to date, including many that still stayed in the employment tribunals.

Mr Justice Blake indicated however  that if the government hadn’t promised to review the level of the the DRA in early 2010 he would have ruled the provision unlawful, and that when that review is conducted a level of 65 would be unlikely to be justified. His judgment can be found here: Age UK, R (on the application of) v Attorney General [2009] EWHC 2336

The government’s announcement came only three days before the present case was heard.

Of course it’s impossible to know what transitional arrangements will apply to amendment of the DRA, but no doubt many employers will be receiving advice at present that they ought to hurry up with dismissing any unwanted 65+ employees that they might have. They key point will be whether, for the new DRA to apply, the date of the dismissal must fall before or after the legislative change, or the notifying of the Intended Retirement Date under the procedure.  If the former, then employers may have already missed the boat for giving the required six months notice, if the latter then we can expect a culling of 65 – 70 year old employees in the months ahead.

In the first instance case of Plewes v Adams Pork Produce Limited (reported by Burges Salmon) the employer’s normal (and contractual) retirement date was the day before the employee’s 65th birthday.

The age discrimination legislation provides that an employer may not have a retirement date below 65 unless there is some sort of objective justification (this is difficult to show in most fields). This chap’s was obviously below, albeit by one day.

So, despite the fact the employer seems to have correctly followed the ludicrous statutory retirement procedure, this happened:

The Tribunal held that Mr Plewes’ dismissal was unfair and, in the absence of any objective justification for a lower retirement age under 65, discriminatory. Further, given that Adams conceded that it did not follow a statutory disciplinary procedure as a result of its mistake over the retirement date, the Tribunal also applied the maximum 50% uplift to the compensatory award. … The employee’s dismissal was therefore discriminatory and he was awarded compensation of over £36,000, including an award of £7,500 for injury to feelings.

Ouch. I agree the liability for both unfair dismissal and age discrimination, but I did find myself wondering about the awards. 50% seems a high uplift where the employer followed a comprehensive procedure in good faith – but there is a woeful lack of guidance on the choice of uplift percentages. Also, was there scope in the unfair dismissal award for reducing the compensation on the just and equitable basis? I mean, OK, I’m arguing contribution by way of reaching an age, which seems wrong, but we are dealing with a dismissal that was one day away from being fair and a framework that says retirement dismissal after the age of 65 is acceptable.

I may think this over further, but it’s an odd set of circumstances.

• 6 months’ notice;
• Invite them to come to a meeting at which they can ask to work longer (which you can just refuse because you hate them);
• When they take offence, offer them an appeal (which you can find against them, because you hate them).

All the usual stuff about being accompanied  by trade union whatsits and so on applies as usual. What’s daft is if you don’t go through the rigmarole of all the meetings then the dismissal’s unfair, but at no point do you have to make a decision that’s at all reasonable. Sample meeting:

Old man: But I need my wages to live, please let me continue to work… I’ve worked here twenty years…

Director: No, I’m sorry, I’m confirming your retirement.

Old man: But why? In god’s name why?!

Director: I’m sick of the way you slurp your tea.

Old man: That’s ridiculous, I appeal!

 <the next week>

Managing Director: Sorry Old Man, your appeal is unsuccessful.

Old Man: But why?

Managing Director: Because I just feel like being a complete bastard today.

The madness of it all is that this dismissal is completely fair, yet the law requires the company to waste the Old Man’s time, and give him false hope, by putting him through a procedure. It’s this sort of tick-box law that doesn’t do anyone any good.

 Anyway, the reason for the post was that the Employment Tribunals have now ordered a stay on any cases which claim that a retirement dismissal is unfair. Unlucky retirees will now have to wait until the European Court of Justice decide if the UK is allowed to have a compulsory retirement age at all. More news on this in about a year’s time.

Despite the new Age Discrimination laws, employers can still compulsorily retire their employees at (usually) age 65 so long as they follow a lengthy and mostly pointless procedure. For me, this is another example of why the laws don’t make any sense, but Age Concern more constructively thought that the compulsory retirement provisions went against the EU directive which lurks behind all equality legislation. They are probably wrong however, as similar Spanish legislation has now been declared lawful by the European Court of Justice.

Personally I think it’s daft to have a policy that age discrimination is wrong, but then retaining all the old laws that say things like:

• You can sack people because they’re 65;
• You pay people a different minimum wage depending how old they are;
• Older people get higher redundancy payments;
• You have to be a certain age to drive HGV, etc.

…and a whole host of other things. As a society we are institutionally ageist, and the current position just pretends we’re not while still requiring people to discriminate.