You can’t sack me I’m an OAP!

Introduction

These notes were written largely from an employers perspective. The points made though have equal relevance to an employee.

1. Abolition of the retirement age
Since 1st October 2006, it has been unlawful to discriminate on grounds of age, unless the employer could establish objective justification. From the 6th April 2011, you cannot dismiss employees just because they have reached the age of 65. It isn’t obligatory though to keep working! You can still retire if you wish. But see below on contractual rights.

2. Employer justified retirement age (EJRA)
Terminology introduced by ACAS. As before, an employer will still be able to justify a company wide retirement age, or any other retirement, if it can establish that it is a “proportionate means of achieving a legitimate aim”. – Key term.

3. Justifying a retirement age
While a retirement age can be legitimate, employers will need to have evidence to support any retirement age they wish to impose on their business.

4. Grounds on which EJRA may be justifiable:
“Dead man’s shoes”; in order that employees can see there is a career path, it may be necessary to have the compulsory retirement of older workers.

Social Policy; imposing a retirement age allows employees to retire with dignity as opposed to being dismissed for diminishing performance.

Facilitating long term employment planning.
The additional cost of employing older workers.

5. Legitimate aim and a proportionate means of achieving it
While it may be easy to show a legitimate aim, it will be more difficult to establish that a fixed immovable retirement age is a proportionate means of achieving that aim.

6. European and UK case law
The law on age discrimination emanates from the EU Equal Treatment Directive, it has been applied somewhat differently in Europe and in the UK.

European cases
Wolfe –v- Stadt Frankfurt am Main 2010. A maximum recruitment age of 30 for fireman was justifiable. It guaranteed operational capacity and proper functioning of the fire service. No discrimination if treatment is due to a genuine and determining occupational requirement (GOR). Fire fighters past the age of 45-50 couldn’t perform the physically demanding tasks required. The age limit on recruitment was proportionate and meant there would be a sufficiently lengthy period of active service before they took on less physical roles.

Petersen –v- Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe 2010. Dentists in the German NHS subject to a retirement age of 68. It was legitimate on grounds of safety to have a retirement age, but no similar restriction in the private sector. The situation, however, could be justified on financial grounds as it ensured financial viability, by limiting the pool of dentists employed. It could also be justified on the grounds it was intended to promote the access of young people to employment.

Rosenbladt –v- Oellerking Gebaudereinigungsgesellschaft mbH 2009 Retirement age of 65 was justifiable. It had the aim of sharing employment between generations and avoiding the potentially humiliating requirement of dismissing employees no longer capable of working. The aims were proportionate, the law took account that the people concerned were entitled to a pension. It provided for employees and employers to collectively agree the retirement mechanism in relation to particular jobs. The retirement provision in the collective agreement was also justified. It aims of facilitating employment for young people, planning recruitment and allowing for good management of an age balanced staff were legitimate. The means were proportionate since the employees once retired were not barred from law in seeking alternative employment.

Ingeniorforeningen i Danmark –v- Region Syddanmark The fact a pension may be payable on dismissal, will not necessarily make the dismissal fair if the employee wishes to find another job rather than draw the pension.

UK cases
Martin –v- Professional Game Match Officials 2010. A retirement age of 48 was not justifiable for football referees. It was legitimate to seek to maintain standards and create a career path for entrance to the profession, but a mandatory retirement age was not proportionate. There was no evidence to support 48 as being the correct age as opposed to 46 or 50. Other European countries have different retirement ages for referees. There were less discriminatory ways of achieving the same aim i.e. carrying out fitness and competency tests, removing those with the lowest scores.

Baker –v- National Air Traffic Service 2009. An absolute age limit on trainee air traffic controllers of 35 was not justifiable.

7. The safe option
Removing a compulsory retirement age is going to be the best bet for most employers. There are alternatives to compulsory retirement. These should be discussed with the employees and not unilaterally imposed. Employers should consider changes to working hours, job sharing, changes in roles and responsibilities, or even deferring retirement and taking on a less demanding and lower paid role. Not necessarily attractive if there is a final salary pension scheme.

8. Group related insurance benefits
It will not be age discrimination to refuse to offer such benefits to employees on the grounds of increased premiums for the over 65’s.

9. Contractual rights
If an employer is removing the compulsory retirement age then contracts of employment will need amending. Other references to retirement benefits i.e. share options may need to be altered.

10. Employees future intentions
Employers should seek to have an open dialogue with employees in their sixties as to what their future intentions are and as to how long they may wish to work.

11. Capacity
Employers can dismiss a 65 year old who cannot do the job, in the same way they can dismiss a younger employee. However, have regard to the question of disability discrimination under the Equality Act 2010.

12. Disability
A person has a disability, if they have a physical or mental impairment, and if the impairment has a substantial and long term adverse effect on their ability, to carry out normal day to day activities. Where an employer has an employee with a disability, they must look at what reasonable adjustments could be made to have regard to it.

13. CostApplying different treatment to older employees may be justifiable on grounds of cost. The law here is currently in a state of flux.

Windfall cases – Woodcock –v- Cumbria PCT 2010 W was made redundant during the course of disciplinary proceedings, to ensure he would not turn 49 and become entitled to a larger pension before his dismissal. It was reasonable as he would receive a windfall payment to which he had no justifiable right or expectation. Case is currently the subject to an appeal.

Costs in general were considered in the above case; “An employer will not as a matter of course be able to avoid liability for indirect discrimination by pointing to the cost of avoiding or correcting it. In many cases, the discriminatory impact in question may be such that the employer must avoid or correct it, whatever the cost. But equally, there may be cases where the impact is trivial and the cost of avoiding or correcting is enormous”.