A few weeks ago I wrote about the lack of impact that the Employment Equality (Age) Regulations have had since coming into force in October 2006. These are colloquially known as the Age Discrimination regulations. However, that may be about to change. Last year Heyday, a not-for-profit organisation and part of Age Concern, launched a judicial review in the High Court against the legality of the default retirement age of 65, imposed by the Regulations. This means that a person can be forced to retire at 65 and it will not usually constitute unfair dismissal, provided the correct procedures are followed. Heyday claim that this is illegal and in breach of the EC Equal Treatment Framework Directive 2000/78. The case has been referred to the European Court of Justice pending a final decision, which is not expected before 2009.
It was thought that the Heyday case had little chance of success, especially as a similar challenge in Spain was rejected by the ECJ last week. The prospects for employees wanting to take action now was not helped by a decision in the Southampton Employment Tribunal in the summer which said that such claims could not be stayed (i.e. put on hold) until the Heyday case is decided. That decision has now been reversed and, it seems, it will be permissible for employees facing retirement dismissal to submit claims to an Employment Tribunal to protect their position pending the decision in Heyday. The advice for employees must be to seek legal advice now if you are coming up to retirement age and your employer is not agreeable to you carrying on past 65. Do not wait for the Heyday judgment as you may lose the right to sue for unfair dismissal in the meantime.
This article first appeared in the “Docklands” newspaper