An Age Old Problem?

The story of Mr Eliadis a 67 year old delivery driver employed by Parcelforce hit the local BBC news because his employer told him to retire and he wants to continue working for another twelve months.

Parcelforce said “The final decision in this case is in no way a reflection on the individual’s performance or ability to do the job.” They also added “It is open to any of our people to request to continue working after the age of 65 and this is only granted if the role requires a specialist skill or the vacancy could not be filled in any other way.”

So in a nutshell a man who has performed his job competently for seven years and wants to continue working is having his employment terminated solely because of his age.

So is this Age Discrimination? Well, the answer is “yes and no”.

When the Government took the latest step in implementing the European Equality Directive by making Age Discrimination in employment unlawful in October 2006 they introduced a qualified right for all employees.

It is open to an employer to objectively justify anything that might otherwise be unlawful age discrimination (other than harassment or victimisation), by showing that it is “a proportionate means of achieving a legitimate aim”. This involves considering if an employer is trying to achieve a worthy outcome and balancing the interests of those who benefit against those who lose out.

Of more relevance to Mr Eliadis’s situation, however, was the introduction of a default retirement age of 65. This means that so long as an employer follows the strict procedure laid out in the Employment Rights Act, it is lawful to terminate the employment of any employee over the age of 65 by reason of retirement.

However, employers need to take care for two reasons. Firstly, any deviation from the strict legal procedure renders the termination of employment both unlawful age discrimination, and an unfair dismissal.

Secondly, the default retirement age is currently being challenged in the European Court of Justice by an organisation called “Heyday”. They claim the whole concept of a default retirement age is inconsistent with the European Equality Directive. This argument seems to carry some weight, and the UK Government will need to defend its position by showing that the default retirement age is objectively justified. This will not be an easy task.

If Heyday’s challenge is successful then this could have serious consequences for many employers. Public sector employers, in particular, will be affected as the decision will have a retrospective effect for them so that any retirements since October 2006 will be made unlawful unless they can otherwise be objectively justified. There is also a school of thought that believes that private sector employers could be affected including Mr Eliadis’s but whether that happens remains to be seen.

Published 04/12/2007. The author of this article is Matthew Huddleson