Retirement and Age Discrimination
Since 1 October 2006 the Employment (Age) Regulations (Northern Ireland) 2006 have made it unlawful to discriminate against a worker on the grounds of age.
The Regulations protect job applicants and those already in employment. Age includes apparent age, so a worker will qualify for protection if they are discriminated against on the grounds of their perceived age, even if this is not their actual age.
However, employers are allowed to force workers to retire when they reach the default retirement age of 65 as long as they give their workers the correct notice of their retirement date. A worker has the right to request to continue working beyond that date, but the employer can refuse such a request if the worker is aged 65 or over.
A large number of tribunal claims were brought challenging the default retirement age of 65 and these cases were all stayed pending a High Court judgment (often referred to as the Heyday case). The High Court has recently ruled that employers can force workers to retire at 65 and these cases are now likely to be dismissed. However the High Court judge also said that he believed that the default retirement age at 65 needed to be reviewed. It was due to be reviewed in 2011 but the Government has already announced that it will bring this review forward to 2010.
The procedure that an employer must follow in retirement cases is:
the employer must notify the employee in writing between six and twelve months before the intended retirement date of the employee’s retirement date and of their right to request to stay on
between three and six months before the intended retirement date, the employee may make a written request to stay on after the intended retirement date. Their request may be to stay on indefinitely, for a stated period or until a stated date
the employer must normally arrange a meeting to discuss the employee’s request. The employee has the right to be accompanied at the meeting by a colleague. If the employer agrees to the employee’s request to stay on, there is no need to hold a meeting and the employee’s contract of employment can simply be amended to include the new intended retirement date
the employer must notify the worker in writing of their decision as soon as is reasonably practicable but need not give a reason for the decision. The employer must also tell the worker of their right to appeal
the employee can appeal as soon as is reasonably practicable against the employer’s refusal to allow them to stay on and the employer should normally hold a meeting with the employee to discuss the appeal within a reasonable period.
There is no minimum length of time a worker needs to have worked for an employer before being able to take an age discrimination claim and the normal three month time limit applies by which a claim must be brought to an industrial tribunal. An employee wishing to bring a claim under the Regulations must normally first raise a grievance with their employer.
Further information on age discrimination is available from your local CAB or from the Equality Commission for Northern Ireland on 028 90 890 890 or from www.equalityni.org
Siobhan Harding is an Information and Policy Officer with Citizens Advice