The clock is ticking for HR professionals who have just 16 days to review their
policies on retirement if they want to ensure they are not at risk from unfair
dismissal claims from older workers.
This is the message from the Employers Forum on Age, which has warned that an
employment tribunal ruling last month (News, 3 September), giving older workers
the right to claim for unfair dismissal and redundancy will have far-reaching
Law firm Charles Russell won the landmark case for unfair dismissal on
behalf of a male worker in his 70s by claiming he had suffered from sex
discrimination because there were more men working beyond 65 than women.
Sam Mercer, campaigns director for the EFA, said the ruling is set to make
automatic retirement of staff on their 65th birthday potentially illegal, well
ahead of 2006 when age discrimination legislation comes into force.
"The ruling may have even wider implications than first assumed, namely
around justifying retirement. Employers have found it difficult to identify any
significant justifications for retirement ages," she said.
Paul Quain, barrister for Charles Russell, said employers without a
retirement age policy were at risk from unfair dismissal claims, as were
employers which had policies that had a greater impact on one sex than the
Employers such as B&Q, Marks & Spencer and Nationwide have already
removed compulsory retirement ages or introduced flexible retirement policies.
Sue O’ Neill, diversity manager for B&Q, which has nearly 2,000 workers
aged over 65, welcomed the ruling.
"Why should people retire if they are not ready to?" she asked.
Andy Bodle, HR director of the National Maritime Museum, which last week
announced it is to axe its retirement age, urged all employers to change their
policies. He said: "It’s best practice. Age is not a health and safety
issue – you can have a 40-year-old who is unfit for work. You have to judge
each case on its merits."
Bodle said the museum replaced its final salary pension with a different
scheme to allow older workers greater flexibility.
Staff can now gain access to their pension at any time between the ages of
50 and 75.
The DTI, which contested the case, has until 3 October to lodge an appeal
against the decision.
By Ben Willmott
What employers should do to avoid unfair dismissal claims involving ageism
– Review policies on retirement to make sure they don’t have a
greater impact on one sex
– Put forward a good business reason
for retiring staff at a particular age where possible
– Ensure performance management
systems can effectively assess performance of older workers