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."