Employment Matters – November 2007

Happy First Birthday Age Discrimination Law!
At first glance it would seem that the Employment Equality (Age) Regulations 2006 have had far less of an impact than first predicted.  There has been the odd case that has hit the headlines, the occasional article featured in the press and even a royal blunder.

However, don’t be misled into thinking the legislation can be ignored.  Within the first 12 months of the regulations being introduced there have been approximately 2000 cases lodged with employment tribunals, a statistic that is bound to increase.   By way of comparison this is around six times as many cases as were brought in the first year of the Religion or Belief Regulations or the Sexual Orientation Regulations. 

Why so high?  Well, we all get older and we were all young once!  The regulations could potentially be applicable to us all at some point in our lives. 

An ACAS survey has revealed that many small businesses are failing to take the regulations seriously and are refusing to change their recruitment and employment practices.  The ostrich approach may well store concerns up for these businesses in the future as more claims come through the system and employees become familiar with their rights.  A number of surveys carried out since the introduction of the regulations have highlighted that age discrimination is prevalent in the workplace and so it is easy to predict that the number of claims will increase.  There have been DBERR (formally the DTI) predictions for 2007/2008 of over 5000 tribunal claims.  

Cases of Interest

Compulsory Retirement Ages
The ECJ has handed down its opinion in the Spanish case of Palacios v Cortefiel Servicios.  The ECJ had to consider whether a law allowing for a compulsory retirement age was in breach of the EU Equal Treatment Directive 2000.  The ECJ found that:

• General mandatory retirement ages did fall within the scope of what is prohibited under the directive.
• However, the ECJ found that a general mandatory retirement age was justified as it was a proportionate means of achieving a legitimate social aim of promoting employment opportunities and reducing unemployment.

The judgment is of great relevance to the campaign group Heydey’s forthcoming challenge to the retirement provisions contained in the regulations.  The High Court in the Heydey case referred a number of questions to the ECJ about the UK’s interpretation of the directive.  In addition to challenging the mandatory retirement provisions, Heydey is also claiming:

• The UK’s standard for justification for direct discrimination is not as strict as the requirement under the directive.
• It is unacceptable that an employer is not required to provide a reason when refusing to allow a worker to continue beyond 65.

It is unlikely that the ECJ will make a ruling before 2009 and so we will have to wait with anticipation as to the response.  Public sector employers could face a number of backdated claims as the directive has direct effect on them.  Heydey Challenge