Charity’s challenge against forced retirement age fails
October 2009
The much anticipated ruling for Age Concern’s challenge to the UK retirement age has arrived
The High Court has ruled that the UK’s default retirement age (DRA) is justified, and this allows employers to force employees to retire at 65 with no risk of discrimination litigation.
At the moment the UK forced retirement age is regarded by the government as ‘appropriate and necessary’. An ageing worker’s employment can be terminated at the age of 65 without a redundancy payout, even if they do not wish to retire, and employers can also refuse to recruit anyone over this age.
However Mr Justice Blake stated there was a compelling case for the retirement age to rise, following a government review in 2010 which has been brought forward a year.
He said that the retirement age introduced by the Government back in 2006 did in fact comply with an EC Directive against age discrimination, but that the case for raising the age ‘would seem to be compelling’. The judge stated that he would have ordered a review, after which he couldn’t ‘presently see how 65 could remain as a DRA’.
Age Concern and Help the Aged are now challenging MPs to act to overturn the legislation, by amending the Equality Bill currently making its way through Parliament. Andrew Harropp, head of public policy at the charity, called for immediate action to outlaw forced retirement before the next election.
Employers have welcomed the decision. Tom Flanagan, employment partner at law firm Pinsent Masons LLP pointed out that without a DRA there may be an increase in employment disputes caused by a lack of certainty around retirement. ‘There is a significant voice within UK businesses that is against the idea of removing the DRA, because it’s viewed as an essential part of employment practice, enabling businesses to plan and develop their workforces,’ he said.
Age Concern originally commenced a High Court challenge in December 2006, arguing that UK age regulations weren’t compatible with the European Equal Treatment Framework Directive. In July 2007 the case was referred to the European Court of Justice (ECJ).
In March this year the ECJ confirmed that the compulsory retirement provisions could be acceptable if they were ‘justified by legitimate social policy objectives, such as those related to employment policy, the labour market or vocational training’.
Whilst he ruled against Age Concern and Help the Aged, Mr Justice Black said that had the DRA been introduced for the first time this year, or there had been no indication of an imminent review ‘I would have concluded that the selection of age 65 would not have been proportionate’. The charity sees this as a strong indication that the current DRA is unsustainable.
Although the majority of people retire before 65, around 60 per cent of over 50s believe they may have to work longer than originally planned due to the fragile state of the economy. Approximately 1.4m people work beyond state pension age.
The Chartered Institute of Personnel and Development (CIPD) expressed disappointment at the decision to uphold retirement age legislation. ‘It seems counter-intuitive to drag this decision out even further while thousands of older people will be forced out of work in an already difficult jobs market,’ said CIPD diversity adviser, Dianah Worman. ‘As the HR body we do not buy the HR argument that businesses can’t manage their workforce without the DRA. If you have poor performers in your organisation you should also have the performance management systems to deal with them. You wouldn’t wait 25 years to remove a poor performing 40 year-old.’
R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills [2009] EWHC 2336(Admin)
Author: Claire Shropshall
Claire Shropshall is the editorial assistant for Charity Funding Report, Caritas, and Codicil magazines. Claire has a BA in English Literature and Philosophy from Birmingham University and a Postgraduate Certificate in Periodical Journalism from London College of Communication. She previously worked in Central America as a voluntary reporter for an English-language newspaper.
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