In modern times and until age discrimination law came into force, those over retirement age of, usually, 65 had no right to complain of unfair dismissal if their employment was ended after age 65 whatever the reason given. When the Age Regulations came into force just over four years ago this was replaced with enforced “retirement” becoming a potentially fair reason for dismissal and outside age discrimination law provided that the complex retirement procedures were followed. If the employer followed the procedure, the employee had no right to complain that they had been dismissed on retirement.
Six years on, in October this year, this old assumption will no longer apply. Age alone will not usually be a reason for fair dismissal. There will be some noticeable exceptional cases such as airline pilots and in the emergency services where employers will likely be able to justify an age cut-off point. This will lead to more focus on employers’ absence and performance management procedures, as these may prove useful in justifying an employer ‘s decision to dismiss fairly an individual over “normal” retirement age by reason of poor health or performance or as one or more of the criteria in redundancy exercises.
Employers will need to ensure that these procedures apply equally and efficiently to those of all ages if the employer is going to avoid accusations that it is only older employees who are being subjected to use of these procedures.
Employers who currently employ staff over 65 (or the employer’s “normal” retirement age) or who have staff who will reach that date before 1st October need to be sure that if they do wish to let such staff go before 1st October the six months’ notice under the existing law is served on a qualifying member of staff before the end of March.
Employees falling into this unprotected species would do well to keep a low profile , not celebrate a 65th birthday and do all they can to be youthful in coming months because employers should not be reminded of the passage of years. The prudent employer will undertake an audit of the age of all staff who might be unprotected.
