Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employment lawEquality, diversity and inclusionCase lawAge discriminationRetirement

Case of the week: compulsory retirement risk for private and public sector: Johns v Solent SD Limited

by Personnel Today 26 Nov 2007
by Personnel Today 26 Nov 2007

Johns v Solent SD Limited, Employment Appeal Tribunal

Background The default retirement age exemption in the Employment Equality (Age) Regulations 2006 allows employers to retire employees at 65, as long as a retirement process is followed.

This exemption is the subject of a challenge by the National Council on Ageing, operating as the Heyday group.

Heyday claims that the exemption is inconsistent with the European Directive on age discrimination.

Heyday’s case has been referred to the European Court of Justice (ECJ), but a decision is not expected until early 2009. However, early indications are that the default retirement age may be here to stay.

In Palacios de la Villa v Cortfiel Servicios, the ECJ recently decided that Spanish compulsory retirement provisions were lawful. There are, however, differences between the Palacios and Heyday cases, and the outcome of Heyday will depend on its facts and whether the ECJ believes that the UK government can justify the default retirement age.

In the meantime, tribunals have had to decide whether to freeze age discrimination cases based on the issues in Heyday, pending the outcome of that case.

Facts Solent retired Mrs Johns in 2006 by following the retirement process in the age regulations. Johns was over 65 at the time of her retirement and, therefore, the default retirement age exemption in the UK age regulations applied.

Johns brought a claim against Solent for unlawful age discrimination and unfair dismissal. She accepted that Solent had followed the proper retirement process, but argued that her claim should be put on hold pending the ECJ’s decision in Heyday.

The tribunal rejected this argument and struck out her claim on the basis that it had no reasonable prospect of success.

Johns appealed to the Employment Appeal Tribunal (EAT).

Decision The EAT overturned the tribunal’s decision and froze Johns’ claim pending the decision in Heyday.

The EAT’s decision is not available in full, but it appears it found that the outcome of Heyday is uncertain, and if the Heyday challenge does succeed, Johns would have a reasonable prospect of winning her claim.

Since this decision, the president of the employment tribunals has directed that all claims of age discrimination relating to the default retirement age should be put on hold pending the outcome of the Heyday case.

Key implications This decision potentially exposes all employers to risk if they compulsorily retire employees. Any age discrimination claim relating to the default retirement age will be put on hold for the time being.

This is the case even where the employer has followed the retirement process set out in the regulations, and relied on the default retirement exemption.

As public sector employees have direct rights under the European directive, if the ECJ agrees with Heyday, claims brought now (within the relevant time limits) by public sector employees will be able to proceed.

As private sector employees do not have direct rights under the directive, it had been thought that the private sector was unaffected by the Heyday challenge. However, this decision suggests that private employers may also be at risk. Solent is a private employer and the EAT said that Johns’ claim had a reasonable prospect of success if the Heyday challenge succeeds. The basis for this decision is as yet unclear.

Solent has been given permission to appeal to the Court of Appeal, and we await clarification of this decision, in particular the impact on the private sector. The tribunal’s direction to put claims on hold will also be revisited in light of the Court of Appeal decision.

In the meantime, employers relying on compulsory retirement should tread carefully. At the very least, employers should follow the retirement process to the letter, but even those that do so are potentially at risk.

Judith Harris, professional support lawyer, Addleshaw Goddard

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
AUDIO: Friday Podcast
next post
Kineo explains to E-learning Network how to get more for less

You may also like

Finance regulator consults on tougher conduct rules

25 Sep 2023

One in four over 50s working part-time

25 Sep 2023

AI in employment: the pitfalls and laws on...

21 Sep 2023

Coalition of firms sets out to boost diversity...

21 Sep 2023

CIPD publishes manifesto for good work

20 Sep 2023

Right to predictable working hours receives Royal Assent

19 Sep 2023

Gender pay gap could take 63 years to...

13 Sep 2023

Economic inactivity among older people remains ‘stubbornly high’

7 Sep 2023

Personnel Today Awards 2023 shortlist: Employment Law Firm...

7 Sep 2023

Interview dress codes: Black candidates fear discrimination

5 Sep 2023

  • Discover the value of CIPD accreditation PROMOTED | See how the CIPD can increase your earning potential...Read more
  • What does it mean to be an HR professional in 2024? (survey) PROMOTED | The world of HR is changing rapidly...Read more
  • The Contractor Management Mastery Pack: Everything you need to manage and pay global contractors PROMOTED | Answers to cross-border...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2023

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2023 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+