Unfair dismissal claims could reach from the grave

A
recent tribunal ruling giving over-65s the right to protection from unfair
dismissal could open the floodgates to claims from those dismissed in the past
– and even from relatives of dead employees.

In
Rutherford vs Towncircle Ltd (trading as Harvest), a male worker in his 70s
successfully argued the statutory age bar to unfair dismissal protection was
indirectly discriminatory as the vast majority of those working past 65 are men
(see Case Round up, page 8).

The
decision is set to be appealed by the Secretary of State for trade and industry
Patricia Hewitt and is likely to take many months to resolve but claims relying
on it could be brought now.

Those
dismissed in the past could get round tribunal time limits by arguing it was
not reasonably practicable to claim before this ruling, said Caroline Noblet, employment
partner at Hammond Suddards Edge.

"Perhaps
worse still, in theory, personal representatives of former staff who have now
died will be able to start unfair dismissal claims under s.206 of the
Employment Rights Act 1996," she said.

Tribunals
are likely to stay these claims until the appeal outcome is known.

"Given
this may be many months or even years away, it may be sensible to make detailed
contemporaneous notes of the reasoning behind the dismissal of staff over
65," advised Noblet.

In
the interim, employers are being advised to proceed on the basis that staff
over 65 have full employment rights. Those wishing to remove employees at
retiring age should have a fair reason for doing so, backed up by objective
evidence, and use a fair procedure.

"The
financial consequences of getting this wrong could be considerable,"
warned Noblet. "A tribunal will accept that someone unfairly dismissed at
65 or above is most unlikely to get another job and that the loss arising from
the dismissal is likely to be significant."

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