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Age Discrimination - The Latest Developments

Article by Lucy Rayner

The Advocate General has rejected an Age Concern-backed challenge to the right of employers to make people retire at 65 years of age.

The Law

The Employment Equality (Age) Regulations 2006 came in to force on 1st October 2006, making it unlawful for an employer to discriminate against an employee directly or indirectly or by victimisation or harassment, on the grounds of age. Please note that there may be circumstances when discrimination on the grounds of age is lawful but an employer must prove that this is a proportionate way of achieving a legitimate aim.

The Regulations contain specific provisions relating to retirement, meaning an employer can lawfully retire an employee at the normal retirement age. The normal retirement age for the purposes of the Regulations and The Employment Rights Act 1996 is 65 years. If an employer has a lower normal retirement age this must be objectively justified.

Employers are required to notify employees in writing at least 6 months in advance of the date on which they are intended to retire. An employee can request to continue working beyond the retirement age and an employer must seriously consider this request.

The Heyday Challenge

Heyday, an organisation supported by Age Concern, began court proceedings to challenge the retirement provisions within the Regulations and the matter was referred to the European Court of Justice (ECJ). The ECJ is expected to give its judgment in 2009.

In September 2008 the Advocate General, a senior legal advisor to the ECJ, gave his view on the case and rejected the challenge and backed current UK laws. Although his decision is not binding on the ECJ it could influence their judgment and the ECJ often follow the Advocate General's findings. Many campaigners have hailed this decision as a setback, whilst employers groups have generally welcomed the decision.

At present those people with cases lodged at an Employment Tribunal have seen their claims 'stayed' pending the ECJ decision.

If you would like any more advice on Age Discrimination and Retirement please contact the Employment Law Team on 0845 300 3574.

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Employment Law section

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