Age discrimination cases on hold

All cases relating to dismissal on grounds of retirement arising under reg 30 of the Employment (Equality) Age Regulations 2006 (SI 2006/1031) are being stayed until the European Court of Justice (ECJ) rules on the legality of UK retirement law, the president of the Tribunals Service has announced.
Judge Meeran’s announcement follows the recent Employment Appeal Tribunal ruling in Johns v Solent SD Ltd, that the claim should be deferred pending the outcome of the Heyday case: R (on the application of Incorporated Trustees of the National Council on Aging) v Secretary of State for Trade and Industry (see this issue p 1651).

Heyday, Age Concern’s membership organisation, wants the ECJ to determine whether UK rules on age discrimination, allowing employers to retire staff forcibly at the age of 65, breach an EU Directive.
Rachel Dineley, head of the national diversity and discrimination unit at Beachcroft LLP, says the decision may come as an unwelcome surprise to employers.

“Only last month, the decision in the Palacios v Cortefiel Servicios SA case, which allowed Félix Palacios de la Villa’s employer to retire him at 65, brought relief for employers. The ECJ was of the view that the imposition of a retirement age in that case  was objectively justifiable, particularly as it was linked to the provision of a pension.” 

However, she says, the Tribunals Service’s 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. 

“This brings huge uncertainty for employers, whose action in retiring someone under reg 30 would previously have been expected to withstand scrutiny but could now be brought into question. The Heyday decision is a long way off; meanwhile, employers are left in difficulty when it comes to retirement, uncertain as to whether they will be accused of age discrimination.”