UK Retirement Laws Backed by Advocate General
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UK Retirement Laws Backed by Advocate General
The Advocate General of the European Court of Justice has yesterday given an opinion in a case referred to Europe by the British courts about whether the UK’s statutory retirement rules are lawful. The Advocate General is a senior lawyer who reviews cases and offers an opinion on the issues to the judges of the European Court. His opinion is not binding on the court, however, it is followed in about 80% of cases.
The case was taken by Heyday, a branch of Age Concern, against the UK government. Heyday challenged the way the government had implemented the European directive banning age discrimination into UK law. The directive requires the elimination of discrimination in employment on the ground of age (this applies to all age groups). However the directive does allow individual countries to lay down compulsory retirement ages.
The UK age regulations set out a retirement dismissal procedure that when followed by employers will give them an absolute defence to any claim of unfair dismissal. Under the procedure an employer must write to the employee giving between six months’ and one year’s notice of the proposed retirement date. The employee then has the right to request to continue working beyond the proposed retirement date. The employer does not have to agree to the request and does not have to give reasons for refusing the request, although a right of appeal must be offered.
Heyday argued that the regulations were wrong to introduce a general defence to age discrimination and that each individual case should be justified. The government argued that the European directive permitted them to decide what was required in relation to UK law taking into account the local economic and social circumstances.
The court decided that the government was right and that the UK regulations were not contrary to the European directive. There are a number of cases currently on hold before employment tribunals which challenge the fairness of retirement dismissals carried out in accordance with the regulations. If the eventual decision of the court was to go the other way the whole procedure would be struck down as unfair. This is what age campaigners were hoping for, however, this now seems unlikely.
This preliminary decision is obviously a set back for age campaigners who say that it is unfair that many older employees are forced to retire when they feel they still have much to contribute. However the Confederation of British Industry has pointed out that 80% of requests from employees to continue working are granted.
The matter will only be settled when the full European Court of Justice decides the case early in 2009. In the meantime, it is expected that most UK employers will continue to follow the statutory procedure for retirement dismissals.
If you need any specific advice or guidance on retiring employees aged 65 or over, or on dealing with requests to work on beyond your organisation’s normal retirement age, Just Employment Law is well placed to assist you.
