Feeling pressure to retire? 

Get the facts here.

People in the United Kingdom are living longer than ever before.  The Office for National Statistics (ONS) has suggested that males born between 2005 and 2007 can expect to have a projected life expectancy of 77.2 years and females 81.5 years.  This is the highest level on record and there are projections that this will continue to increase.  Further, statistics suggest that people are increasingly healthier for more of these years.  This is indicative that a greater number people will be fit for work for more years of their life.

Government policy is encouraging people to have longer working lives.  It has been proposed that by 2048 the state pension age will rise to 68.  Further, the Employment Equality (Age) Regulations 2006 make it unlawful for employers to force their employees to retire below the default retirement age, which is currently 65.  These Regulations protect employees from age discrimination in all aspects of employment.  This can range from recruitment and training through to retirement.  However, a recent ruling by the European Court of Justice (ECJ) indicates that these Regulations may not protect older people as much as was first thought.  A Preliminary Ruling in the Age Concern case decided that these Regulations are compatible with the European Directive on Age Discrimination and therefore a compulsory retirement age of 65 is not unlawful.  However, employees over 65 do still have some protection.  This article will set out what this is and advise on what to do if you think you are experiencing age discrimination.  It will do this by relating it to an employee called Brian.  He is 63 and works as an Outdoor Pursuits Instructor, taking young people out climbing. 

Anti-discrimination law requires employers to allow their employees to continue working until they are 65 unless ‘objectively justified’.  This means that in order to force an employee to retire below this age they must show that it is appropriate and necessary.  For example, it may be that a job requires a very high level of fitness.  If an older employee could not attain this level and there was no alternative position for them within the company, it may be appropriate for them to retire.  Taking the example of Brian, his job does require a high level of fitness.  Therefore although he is only 63, his employers may have an objective justification for retiring him early.  This would however be dependent upon how fit he is and the level of fitness required to take people out climbing.  If there were a suitable alternative position for Brian within the company it would also be inappropriate to retire him early.  For example, there may be a desk job available or a role that does not require him to partake in the activity.  The employer may also be in a position to make reasonable adjustments to his job in order to make it easier for him.   

Employers must also not directly or indirectly discriminate against employees.  It would be direct discrimination to recruit on the basis that all applicants must be under 40.  Indirect discrimination can be harder to spot.  An example would be if the employer only selects part time workers for redundancy if a large proportion of these were older workers.  This indirectly discriminates against older workers.  If Brian worked part time this could indirectly discriminate against him.  However, this may be justified if the employer has a legitimate aim.  This could be for economic or business reasons.  It may be that a business must run on certain shift patterns that indirectly exclude certain workers.  If this is necessary for the business it may be a legitimate aim.  However, if a shop wished to promote a young image and so did not recruit older people this would not be a legitimate reason.  The discrimination must be proportionate.  There must therefore be no reasonable alternative.

When forcing an employee to retire the employer must give them written notice a maximum of 12 months and a minimum of 6 months before the intended retirement date.  Therefore if the Outdoor Pursuits Company wished to retire Brian on his 65th Birthday, notice must be given to him at least 6 months prior to this.  If less than 6 months notice Brian could claim up to 8 weeks pay in an Employment Tribunal.  If less than 2 weeks notice is given this automatically amounts to an unfair dismissal and Brian could pursue this in an Employment Tribunal.  Initially if the requisite notice is not received it would be advisable for Brian to write to his employers explaining his position and attempt to resolve the situation.

After receiving notice if Brian wished to continue working he could make a request to his employers.  This should be done 3 to 6 months before the intended retirement date.  It should be made in writing, stating that it is pursuant to Paragraph 5, Schedule 6 of the Employment Equality (Age) Regulations 2006.  The request should state whether Brian intends to continuing working indefinitely or for a certain period of time.  The employer must consider this request and hold a meeting with Brian to discuss it.  However, the employer does not have to agree to this request or give a reason as to why they are turning it down.  If the request is refused Brian does have the right to appeal.

There is no upper age limit on unfair dismissal claims.  If an employee over the age of 65 is of the opinion they are unfairly dismissed they can seek advice on an unfair dismissal claim. 

Age discrimination can happen in many ways other than retirement.  It can be discriminatory if the employer sets upper or lower limits on training courses.  It is also discrimination to impose a lower age limit when recruiting, unless this can be objectively justified or is necessary under the law.  It can affect all employees, whether they are young or old.     

Both employers and employees should be vigilant against discrimination in the workplace.  Age discrimination forms only a small part of the discrimination law.  Employees are entitled to raise the matter with their employer if they think they are being discriminated against. If you are an employer who is concerned about age discrimination or an employee who thinks they are being discriminated against it is prudent to seek legal advice.