Case law: age discrimination claim on retirement fails

Employers will welcome a recent tribunal decision on the way in which the age discrimination rules that came into force last October (2006) are applied to retirement. The tribunal decided that a dismissal for reaching the default retirement age is not unfair.

A female employee was retired at 65 by her employer. She claimed unfair dismissal on the basis that, under the Employment Equality (Age) Regulations 2006, the default retirement age is not a valid ground for dismissal. This follows the line of thinking in the case brought by Age Concern, due to be heard by the European Court of Justice, which is commonly referred to as the 'Heyday challenge'.

The employee asked for her claim to be held over until the outcome of the Heyday challenge is known. However, since this is not likely to be until 2009, and the employee's chance of succeeding in her claim was assessed as being low, the tribunal struck out the claim.

While this is only a decision by a tribunal, which other courts and tribunals are not bound to follow, it should be sufficient to deter most employees from bringing similar claims. Also, a very recent Spanish case appears to support the tribunal's approach; and, even if the Heyday challenge is successful, it would be most unlikely to work retrospectively for retirement decisions that have taken place under the current rules.

Immediate