Employment Law E-Bulletin

Cases: Oct 2007

Age discrimination

The case of Holmes v Active Sensors Ltd confirms that, provided an employer follows the statutory procedure, it is not age discrimination to retire an employee at 65.

Mr Holmes had worked for Active Sensors as a technician for just under 2 years when the company wrote to him to say that they planned to retire him on his 65th birthday but informing him of his right to request to continue working beyond 65 should he wish to do so. Mr Holmes immediately replied saying that he would like to continue working for at least 2 months.

Mr Holmes’ line manager met with him to discuss the matter but the company decided to stand by the decision to retire him and wrote to Mr Holmes confirming this. Mr Holmes appealed this decision informally but the company maintained its stance. As a result, Mr Holmes brought a claim for age discrimination and unfair dismissal.

The good news for employers is that the Tribunal has rejected the age discrimination claim confirming that, because the employer followed the correct procedure, a dismissal on the grounds of retirement at 65 years of age is not age discrimination.

This decision is also supported by the recent decision of the European Court of Justice in Palacios de la Villa v Cortefiel Servicios SA, which has upheld the right of the Member States to maintain mandatory retirement ages. The decision is a narrow one and we await further cases on this issue but, for the moment, retirement ages are here to stay and, provided employers follow the correct procedure, making use of them should not lead to successful claims.

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Getting rid of malingerers

The decision of the Employment Appeal Tribunal in Corus UK Ltd v Mainwaring is also pro-employer in that it sets some ground rules as to how far employers need to go when investigating employees whose sickness absence is in question.

In this case, Mr Mainwaring had been employed by Corus as a crane driver when he began to suffer back problems and was signed off sick from work. Shortly before Mr Mainwaring was due to return to work, after a significant period of absence, the company received a tip off that Mr Mainwaring was not behaving as someone with a back injury would.

Following this tip off, Corus organised video surveillance of Mr Mainwaring. This surveillance confirmed that Mr Mainwaring was undertaking tasks that he claimed to be unable to do because of pain in his back. He was therefore called to a disciplinary hearing and subsequently dismissed.

The original tribunal said that the fact that Corus did not take a statement from the informant or consult a specialist showed that the company had been determined to dismiss Mr Mainwaring and had not acted reasonably. Thankfully for employers everywhere, the EAT has disagreed.

The EAT’s decision shows that, as long as the employer relies on the results of its own investigation rather than the informant’s tip off, the employer does not have to take a statement from the informant. In this case, Corus had clearly used the tip off as the starting point but had gone on to do their own investigation into the allegation and had relied only upon the results of this investigation when coming to the decision to dismiss.

The EAT went on to say that although some medical evidence will generally be required an occupational health adviser, as used by Corus, will be sufficient. The EAT specifically said that it was not unreasonable to use such a provider instead of taking the step of going to the employee’s consultant, provided that the medical evidence used was obtained from an independent source.

Although this decision is useful for employers, it does underline that evidence is important in such cases but that once that evidence is in place, employers can take the decision to dismiss if the circumstances warrant it.

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For further information on how these cases might affect you, contact the employment law team of Burnetts Solicitors on 01228 552222.

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