Has age concern had it's heyday?
On Monday the 3rd July the Government has been taken to court by Heyday, a membership organisation set up by who specialise in creating social and policy change for the over 50's. In what has become to be known as the "Heyday" case, the Government's stance on the Mandatory Retirement Age (currently set at 65) is under attack in an action that is supported by the charity Age Concern, launched the Heyday organisation in 2006.
Under current UK legislation an employer has the right to force an employee to take retirement upon reaching the age of 65. This is in addition to the right to dismiss employees on the grounds of performance and ability. However, an employee can request to continue to work after reaching the age of 65, and an employer can accept this offer to extend the employee's employment.
Heyday and Age concern argue that this provision is unlawful under a European Directive outlawing Age Discrimination, and that the right to dismiss employees on grounds of performance and ability should be enough.
Recent developments
In a shocking blow to Age Concern's case, on 23
September 2008, Advocate-General Jan Mazak, a senior legal advisor
to the European Court of Justice advised the Court to support the
current UK rules and dismiss Age Concern's arguments that the UK's
Mandatory Retirement Age is unlawful.
The Opinion of the Advocate-General, although not binding, is likely to influence the Court's decision with the Court expected to come to a verdict just before Christmas. Over 250 people in Britain have cases in Employment Tribunals which depend on this judgment.
Employers' groups have expressed relief at the decision claiming that a Normal Retirement Age of 65 is an essential management tool. If the MRA is removed it could potentially make the task of an employer dismissing an employee more difficult.
Employees still have the option to request to continue working past the Normal Retirement Age. A survey conducted by CBI, an employers' organisation, found that in the last year just over 30% of employees requested to work beyond the national retirement age and that 80% of these requests were granted.
Katja Hall, the CBI's director of employment states that this is a "sensible and fair" opinion allowing "employers and employees to sit down and find solutions that work for both sides."
Gordon Lishman, Director General of Age Concern has described the opinion as a "set back, but not a disaster" for the movement and with some time yet before the decision Alisa Ogilvie, Director of Heyday hopes that the UK Courts will not follow the opinion.
Paul Epstein QC from Cloisters, the chambers acting for Age Concern, stated that "the view which is being put forward here is that age discrimination is less serious than race or sex discrimination and that the government has largely got it right in terms of European Law."
However, he said it was "far from certain" whether the European Court of Justice would follow the Opinion.
Implications for companies
If the European Court were to not follow the
Advocate-General's decision and find in favour of Heyday then the
way retirement proceedings are conducted in the UK would have to
change radically. Instead a new procedure would have to be created
and implemented in order to deal with when an employee reaches
retirement age. One opinion is that the decision may only affect
public sector employees, however time will tell on this issue.
Debra Cottam an Associate Solicitor at Higgs and Sons advises readers to keep their ear to the ground with regards to the outcome of this case as it could herald a new era of retirement policy.
Any readers who need help or advice in this area should contact the Employemt Team at Higgs and Sons who will be more than happy to offer guidance on the matter.
Printer friendly