Following the abolition of the default retirement age in 2011, a dismissal based on an employee's age amounts to age discrimination, unless it can be objectively justified.

This can be particularly difficult when addressing the issue of retirement with older workers. In Quick v Cornwall Council, an employment tribunal held that various comments made to and about a head teacher in relation to her retirement did not constitute age discrimination, given that they were made in the context of restructuring and succession planning.

Mrs Quick was headmistress of a primary school. Cornwall Council had been discussing possible mergers between four primary schools, including Mrs Quick's school, which meant that retirement or redeployment of some teachers was likely. Following allegations against Mrs Quick, she was dismissed on the grounds of serious misconduct and irretrievable breakdown in trust between the parties. Mrs Quick then submitted tribunal claims which included age discrimination and harassment claims. Her allegations were based on various incidents, including:

  • a colleague asking her if she had any plans for retiring;
  • a discussion between Mrs Quick and the Chair of Governors about her retirement;
  • an email comment from the Chair of Governors to a School Improvement Partner: 'we will be observing teaching in both classes including her. She's 59';
  • a comment from the Senior Education Improvement Officer: 'Too many people carry on after they should have retired'; and
  • a comment from the School Inspector:  'You could be at home with your little grandchildren.'

The tribunal dismissed Mrs Quick's claims, holding that her dismissal was due to her serious misconduct and a fundamental breakdown in trust and confidence. Although many of the comments made to her were clearly age related, they had to be seen in the context of the proposed restructuring which meant that it was sensible for the council to discuss succession planning and possible retirement. This did not constitute less favourable treatment. The comments from her colleague were in the context of his own career aspirations, since her retirement plans would affect his future. In addition, Mrs Quick had herself made some enquiries with the Council's HR department about her retirement.

The decision provides some reassurance that employers can have conversations about retirement in the context of workforce planning without falling foul of age discrimination legislation. However, it should be noted that the Council in this case was carrying out a fundamental restructuring, and the employee was also found to have been dismissed for serious misconduct. Clearly, similar ageist comments made in other circumstances could be regarded as discriminatory.

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