The age of dissent

Developments in EC legislation could prompt a raft of age discrimination claims against employers, argues David Craig. David Craig is a barrister at London's Devereux Chambers.

Older staff are being openly discriminated against. Even worse, that discrimination is officially sanctioned. Section 109 of the Employment Rights Act 1996 says the right of employees to fight unfair dismissal does not apply to those individuals aged 65 or over. And if it is established that an employer normally retires its staff at, say, 60-years-old, anyone aged 60 or over is precluded from pursuing a claim for unfair dismissal.

Section 109 is also indirectly discriminatory. Because, in general, there are more older men working than women, a higher percentage of men are refused the right to claim unfair dismissal compensation. But, in the eyes of the law, compensation falls in line with article 119 of the Treaty of Rome, which states that men and women are entitled to equal pay (though the European Court of Justice is soon to deliver judgment on this issue in the Seymour-Smith case). So section 109 appears incompatible with article 119, as it has a disproportionate effect on men's ability to claim equal pay.

But if a European member state can establish that a legislative provision such as section 109 is appropriate and necessary to achieve its social policy, the mere fact that the provision affects many more men than women cannot be seen as an infringement of article 119. At this stage, there is no evidence that there is such an objective justification in the UK. Indeed, in the case of Nash v Mash/Roe Group this year, the then Secretary of State for Trade and Industry, Margaret Beckett, was invited by an industrial tribunal to submit representations justifying section 109, but failed to do so.

In the absence of any objective justification, employment tribunals are obliged to apply article 119 over section 109 because national courts must apply directly applicable provisions of European Community law before national law and any domestic law which prevents a court protecting community law rights must be set aside, even if the domestic law has been enacted after the community provision. Thus, article 119 takes precedence.

The same holds true for a directly applicable provision of community law. This means that all employees, whether male or female, may have a valid claim for unfair dismissal before the employment tribunal. And whereas women may have trouble establishing a case of indirect discrimination over compulsory retirement ages because generally they have a greater impact on men, both sexes should be free to pursue a claim for unfair dismissal.

The upshot of this is that employers will no longer be able to hide behind section 109. Their enforcement of compulsory retirement ages and dismissal of employees aged 65 or over may see them fighting claims of indirect sex discrimination and claims of unfair dismissal from both men and women. Employers need to ensure a dismissal is fair for reasons other than the fact that an employee has reached the normal retirement age or is over 65.

It is fairly easy to imagine social policy objectives that might justify a provision such as section 109, not least the knock-on unemployment problems of people working until they are much older. And the Secretary for Trade and Industry is likely to feel the heat from both sides of a highly political debate. However, for the moment it is clear that employees may have some protection against age discrimination in the employment field, even if that protection has been introduced rather unwittingly through the back door.