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Default Retirement Age –forcing employers to leave employment before their time? Or a necessary requirement?

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The High Court’s recent decision that employer’s rights to halt careers of the over 65s was deemed lawful in September this year, splitting the nation’s opinion down the middle of an ageing chasm.

The Heyday case was an important moment in employment history. It signalled the court’s acceptance of a law which by its very nature seems discriminatory and ageist. Forcing employees to take retirement based on their date-of-birth may seem archaic but nevertheless lawful in the eyes of the country’s leading legal authorities.

Dedicated to improving the lives of the older generation, charity Age UK launched their Heyday case against the Secretary of State for Business Innovation and Skills on the grounds that the default retirement age (DRA) was not consistent with the European Commission’s Equal Treatment Framework Directive.

The long awaited outcome was not what Age UK had hoped for, claiming the court’s decision was “a huge blow for huge numbers of old people.”

In March, the European Court of Justice ruled that the Directive permitted compulsory retirement at the age of 65, remitting the case to the High Court.

But, unfortunately for Age UK, the High Court upheld the law, meaning that as a loyal employee reaches the ripe old age of 65 it is perfectly within an employer’s rights to show them the door, provided proper procedures, set out by the Age Regulations, are applied.

Said procedures require employers to give between six and 12 month’s notice of their intentions. Employees can still request to work on in their later days, but employers need not offer an excuse as to why a contract has to be terminated.

The ruling has far reaching consequences, not only on an employee’s continued income, but also the level of compensation that can now be awarded by employment tribunals. If an employer can prove that they would have retired their discriminated or unfairly sacked employee, a cap may be put on the court’s decisions over future loss of earnings.

The double whammy from the courts offers little sign of encouragement for ageing workers, but government mumblings over the future of the law may add a silver lining to darkening prospects.

Andrew Harrop, Head of Public Policy at Age Concern, said: “In his ruling the judge makes it clear that the only reason he has allowed the law to stand is because ministers have already caved in to our pressure for a review.”

“Forced retirement at 65 is unsustainable. This judgement makes it crystal clear that this unfair legislation is past its sell by date.”

If successful, the review will abolish, or at least postpone, the DRA and allow workers the right to retire when they choose. But for the moment, approximately 250 pending age discrimination cases, which sat patiently knitting away while the law lords made their damning judgement, have been thrown into the abyss.

The government is also seeking information on the operation of the DRA in practice in the coming months. They will assess why employers use mandatory retirement ages, the impact that raising or removing the DRA would have on employers, and how the costs associated with moving or scrapping the DRA could be mitigated.

Each one of those cases will feel hard done by, as too will the thousands upon thousands of 64-year-olds patiently clinging to the wireless for a glimpse of good retirement news.

But a word of advice, just because an employer believes they have legal protection from an increasingly disparaged Army of the Elderly, sometimes ‘i’s are not dotted and the occasional ‘t’ not crossed. If you feel unfairly treated as an employee and know your senior colleagues are hiding behind a thin protective veil, contact your local solicitor and discuss your case.

For now though, those spurned workers will just have to bide their time, embrace their new found freedom, and hope that one day the courts decide that age really is just a number.

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Written by Andrew Hodges

December 3, 2009 at 10:40 pm

Posted in Comment, LinkedIn

Tagged with , ,

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