We currently await the European Court of Justice's ruling in the Heyday case in which Heyday, an organisation created by and closely associated with Age Concern, is challenging the legality of the Age Regulations. The challenge is based on the argument that the Regulations fail to implement the EU Equal Treatment Framework Directive, since the Regulations allow forced retirement at 65 and allow employers to refuse work to those over 65.
In the meantime, in light of this challenge, a number of employees who are being compulsorily retired are bringing claims for age discrimination and unfair dismissal, arguing that the default retirement age of 65 in the UK is not a valid ground for dismissal. These claimants are asking tribunals to stay, i.e. put their cases on hold, pending the outcome of Heyday’s challenge. One of these cases was Johns v Solent SD Ltd which came before the Southampton Employment Tribunal.
Mrs Johns brought a claim for age discrimination and unfair dismissal against her employer, Solent SD Ltd ("SSD") because she had been dismissed at age 65. This was despite the fact that she accepted that SSD had followed the statutory retirement procedure correctly and that she was dismissed by reason of retirement, a potentially fair reason in terms of the Employment Rights Act 1996. SSD applied to have the claim struck out and Mrs Johns applied for her case to be stayed pending the outcome of the Heyday case. She argued that if the challenge was successful, her claims would have a good prospect of success.
At a pre-hearing review, the ET dismissed her application for a stay and struck out her claim on the basis that it had no reasonable prospect of success.
The EAT has, however, somewhat surprisingly, upheld an appeal by Mrs Johns, concluding that the case should have been put on hold pending the decision in Heyday and this has now been done. We understand that the EAT's reasons will not be available for some time, however, it appears that the EAT must feel that there is a real possibility that the Heyday challenge will succeed.
In view of this decision, the President of the Employment Tribunals may well order that all retirement-related age discrimination claims be put on hold in the same way. This would mean that we will all face a period of uncertainty for some time to come, particularly since the Heyday case may not be heard until 2009. It is hoped that Solent will appeal the EAT's decision to the Court of Appeal. In the meantime, employers face a risk of being held liable for age discrimination, even if they have obeyed the Age Regulations and, in particular, the statutory retirement procedure, as currently drafted.
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