Heyday, an organisation for retired people, is challenging the
Regulations, which came into force on Sunday, at the High Court. It
is fighting for better employment rights for people over the age of
65.
Heyday argues that the Government failed to properly implement
the European Directive from which the law is derived. Its case has
been given a hearing date of 6th December. The Heyday organisation
is backed by Age Concern.
"Forcing people to retire is denying people the right to work, a
right which everyone should have regardless of age," said Neil
Churchill of Heyday. "The Government has failed in its legislation
around ageism in the workplace. Currently, workers have no rights
to stay in employment past 65 and are being driven out of
work."
The Employment Equality (Age) Regulations became law on Sunday.
The law is designed to make any discrimination in employment,
recruitment or training illegal, but there are some exceptions in
the legislation which involve treating people differently according
to their age.
"Heyday do have a good point and it is a view that is shared by
many," said Ashley Graham, an employment lawyer with Pinsent
Masons, the law firm behind OUT-LAW. "The default retirement age of
65 was criticised heavily throughout the consultation process on
the basis that it undermined the principle of equality and created
a safe and convenient loophole allowing employers to retire
employees 'fairly' at 65, regardless of whether that was the real
reason for their dismissal or not, thereby avoiding potential
unfair dismissal claims."
The retirement age is not compulsory, it merely allows employers
to insert mandatory retirement ages into contracts. Workers can
carry on beyond 65 by agreement with their employer. The Government
has said that it will monitor the impact of keeping a default
retirement age and said it will conduct a formal review of it in
2011. It has promised to abolish the provision if it believes it no
longer needs it.
"One respondent during the consultation process said that it
considered this decision to be indicative in itself that the
Government realised it was on 'shaky ground'," said Graham. "Others
commented that it was difficult to identify what evidence might be
different in 2011 in terms of trends in life expectancy, age of the
workforce, value of older workers in business and so on.
Undoubtedly though, the proposed review in five years time is an
invitation to those intent on challenging the legality of the
provision, as Heyday are now doing, whilst giving the Government an
opportunity to see how the inevitable litigation turns pans out
over the next few years."
Another controversial part of the law relates to redundancy.
Employees over 41 years of age are entitled to better redundancy
packages than those under that age, which some critics say is not
consistent with the anti-discrimination aims of the law.
"The Regulations provide that enhanced redundancy schemes
provided by employers which offer payments over and above the
statutory scheme must mirror the statutory scheme to be lawful,"
said Graham. "This leads to the slightly bizarre result that if an
employer decides to pay all its redundant employees three weeks'
pay for every year of service regardless of their age in order to
treat them all 'equally', this would be discriminatory in terms of
the Regulations."
The other major piece of age discrimination which is
specifically protected is that employees on the minimum wage can
still be paid less if they are under 21 than if they are over
it.
"What matters is the person, their skills and abilities not
their age," said Trade and Industry Secretary Alistair Darling. "We
are determined to create a world where the best person for the job
is just that – the best person. The new laws will help do
that."
