Employment Law E-Bulletin

Cases: Mar 09

The Retirement Age

A case that has been very much in the news over the past few weeks is the Heyday Challenge to the default retirement age of 65. This case concerns an application for judicial review of the compulsory retirement age by Age Concern and others. Age Concern argued that:

* the whole concept of a mandatory retirement age is unlawful under European law;
* the government’s choice of 65 for compulsory retirement cannot be justified (as being a proportionate means of achieving a legitimate aim);
* direct age discrimination should not be capable of justification; and
* there should be a list of the discriminatory treatment of employees that is justifiable.

The ECJ has now ruled against Heyday on all counts.  The ECJ stated that the UK’s current legislation does not set out a mandatory scheme of automatic retirement. Instead, it sets out conditions under which employers may choose to dismiss employees for the reason that they have reached retirement age should they want to do so.  This, according to the ECJ, was permissible under current European law.

However, the ECJ was clear that any age discrimination (including a set retirement age) must be justified as being a proportionate means of achieving a legitimate aim. The ECJ made no comment on whether the UK government could, or would, succeed in justifying the current default retirement age of 65 but indicated that aims that might be considered legitimate include meeting social policy objectives, which might reflect the state of the current labour market. The ECJ also pointed out that assertions about labour practices would not be sufficient and that evidence would be required to support justification arguments.

The ECJ saw nothing in the European law that prevented direct discrimination from being justified and did not believe that Member States were required to include a list of examples of treatment that may be justified in their national legislation. The ECJ felt that the list in the Equal Treatment Directive was merely illustrative, rather than a compulsory feature of any domestic legislation and that lists would be too restrictive.

Age Concern’s lack of success means that the default retirement age remains, but only for the time being. The case is far from over and will now return to the English courts for a decision on whether the government can justify the age of 65 as being the age at which employers can dismiss employees fairly for retirement purposes, or even refuse to take them on when they are at, or nearing, that age given the comments made by the ECJ. The ultimate outcome of the case will therefore depend upon whether the government can find the evidence to support its belief that retirement at 65 is justified.  It remains to be seen whether such evidence exists.

More on Religious Beliefs

It is beginning to seem like we are always covering cases on discrimination on the grounds of religion or belief but this month has seen yet another well publicized decision in this area. The case of Chondol v Liverpool City Council provides helpful clarity for employers in that it has confirmed that it is not unlawful to dismiss an employee who is promoting their own personal religious beliefs if this is against the ethos of the employer.

In this case, Mr Chondol, a social worker for Liverpool City Council was dismissed following an investigation into his behaviour after a complaint was made by a service user that they did not want to see Mr Chondol again because he kept talking about God and the church. During the Council’s investigations it was alleged that Mr Chondol had, during the course of caring for a vulnerable service user, asked if the service user believed in God. He had given a bible to someone in his care and had also arranged for a service user to visit him at home in a manner which the Council considered blurred the distinction between service user and friend.

The Council believed that the incidents showed a clear breach of their prohibition on the overt promotion by social workers, in the course of their work, of any religious beliefs that they might personally hold. Mr Chondol disputed the factual accuracy of the incidents as described by his employer but was dismissed because of concerns about his ability to recognise professional boundaries. Mr Chondol then brought a claim that his dismissal was unfair and that it amounted to unlawful discrimination on grounds of religion or belief.

When the case came before the Employment Tribunal, the Tribunal decided that there was not enough evidence to support any finding of inappropriate promotion of religious beliefs but that dismissal for promoting such beliefs would not have been discriminatory because there was a clear policy in place, of which Mr Chondol had been well aware, against promoting any particular faith.  The Tribunal felt that there was a difference between dismissing someone for going against that prohibition and dismissing them because of their faith.

Although the EAT has upheld the Tribunal’s reasoning, and supported the distinction made by the Tribunal between personal faith and the active promotion of one’s beliefs, the EAT emphasised that the important factor is to establish the true reason for the dismissal.  If, as here, it is for something other than the holding of a particular belief then discrimination will not be a factor and the dismissal will not be unfair. 

Those who feel called to share a strong personal faith should perhaps, as a result of this case, choose employers who are sympathetic to their beliefs but employers should remain cautious of dismissing someone on religious grounds and should remember to take a final objective view at the decision before a dismissal takes effect, just to ensure the decision is not tainted by any discriminatory elements.  However, those organisations with strong multi-faith, or indeed atheistic, ethics should take heart that overt promotion of one faith over another need not be tolerated if it is inappropriate in particular circumstances.

Back to Employment Law E-Bulletin Mar 09

Read lead article on dealing with long term absence

March 09