Pensioners lose age discrimination test case

Pensioners lost the right to claim compensation for unfair dismissal or redundancy last week, when the Employment Appeal Tribunal (EAT) rejected a test case.

The legal action concerned two workers in the clothing industry – John Rutherford, now 72, who was taken on at the age of 63 and made redundant when he was 67, and Samuel Bentley, now 76, who lost his job after 23 years when the business went into receivership in 2001. The Directive on Equal Treatment has to be implemented by the end of 2006 and will make age discrimination unlawful, but at the moment no law exists in England and Wales banning it.

Under the Employment Rights Act 1996, men and women over the age of 65 have no right to claim unfair dismissal or redundancy payments. The two men took their case to the Stratford Employment Tribunal, London, in June last year. They argued that there were twice as many men as women over 65 who worked, and therefore the retirement cut-off point at 65 years discriminated against men, in breach of the EU’s rules on sex discrimination. The Stratford tribunal agreed and ruled that the two men had suffered indirect sexual discrimination. The Secretary of State for Trade and Industry Patricia Hewitt appealed the decision.

Paul Quain, a partner in Charles Russell’s employment and pensions unit, who represented Rutherford, said that although the decision was “disappointing”, it did “not mean this is the end of the road”, as they were considering taking that case to the Court of Appeal “and further if necessary”.

“This is an extremely important case, as people working after retirement age are an increasingly significant part of the working population,” said Quain. “And we’re told that people will have to expect to work even longer because of the state of their pensions.”

Gordon Lishman, director-general of Age Concern England, was “indignant at this betrayal of all workers over 65.” He added: “New laws will be introduced in 2006 to stop age discrimination in the workplace and we see no sense in waiting until then. We urge the Government to amend the Employment Relations Act so that employees have full rights at work, whatever their age.”

Meanwhile, the directive is technically in force, and although individuals cannot claim directly under it, EU member states must refrain from actions that could be regarded as contrary to it. Watch this space.

See: Secretary of State for Trade and Industry v. (1) Rutherford, (2) Bentley, and (3) Harvest Town Circle Ltd (in liquidation)