Vizards wins important age discrimination ruling

The Southampton Employment Tribunal has struck out a claim for unfair dismissal and unlawful age discrimination, and denied a request that proceedings be stayed pending the outcome of the Heydey challenge[1]. The result of the ruling is that businesses should not have unresolved employment tribunal cases hanging over their heads indefinitely while this challenge proceeds through the European Court of Justice over the next few years.

Susanna Gilmartin, partner in the solicitors Vizards Wyeth Employment Team, who represented the respondent (Solent SD Limited), said: ìThe Tribunalís decision is a positive one for employers who, despite acting in line with the legislation and complying with their legal obligations, are nevertheless being sued by disgruntled employees who are unhappy with the governmentís decision to impose a 65 year statutory retirement age limit.

ìI would encourage companies faced with similar complaints in the Employment Tribunals to resist any request for a stay of proceedings pending the outcome of Heyday. The chairman, rightly in my opinion, felt companies need to be allowed to get on with running their businesses without the concern and cost of having claims hanging over them for several years, particularly where those claims have little prospect of success.î

Case Background:
In this case - Johns v Solent SD Limited - Mrs A Johns challenged the fact that she had been retired on having reached the statutory retirement age of 65. She did accept that her employer had followed the correct procedures in retiring her and that the reason for termination of employment was retirement, a fair reason for dismissal. She requested a stay of the proceedings pending the outcome of the European Court of Justiceís decision in the case of R (In the Application of the National Council and Ageing) ñv- The Secretary of State for Trade and Industry, otherwise known as the Heydey Case. Mrs Johns was supported in her claim by Age Concern.

The Heydey challenge is by way of a judicial review of the legality of the Employment Equality Age Regulations 2006 that allow the mandatory retirement of employees over the age of 65.

The request for a stay of the proceedings was opposed on the basis of the opinion of the Advocate General in the case of Felix Palacios de la Villa v- Cortefiel Servicios SA that the principal of non discrimination on grounds of age, set out in Article 2(1) of the Equal Treatment Framework Directive does not apply to national laws which set retirement ages. It was also argued that as Article 6(1) of the Directive permits Member States to set a statutory retirement age Mrs Johnís had no reasonable prospect of success in bringing her claim.

Although, the European Court does not have to follow the opinion of the Advocate General the Employment Tribunalís Chairman found that the Advocate Generalís opinion was lengthy and well argued and that the issues in both that case and this case were sufficiently close for the outcome to be the same. The Tribunalís Chairman therefore decided that the prejudice to the employer in these proceedings being held in abeyance for a considerable period of time whilst the Heydey Case proceeds through the European Court of Justice outweighed the prejudice to the Claimant in having her claim struck out as it only had a remote chance of success.

Susanna Gilmartin added: It is hard to put an estimate on how many similar cases there are, but we are starting to see more and more age claims coming before the Employment Tribunals. Individuals who are being retired at age 65 are being encouraged by lobbying organisations such as Age Concern to lodge claims requesting a stay of proceedings pending the outcome of Heydey. However in light of the Advocate Generalís decision I would encourage Employers to strongly resist these claims.ì

[1] {Heydey, an arm of Age Concern, is bringing a European Court of Justice claim, arguing that the UK Government was in breach of the European Unionís Equal Treatment Directive by imposing a mandatory retirement age of 65}.