Challenge to default retirement

As predicted, Heyday, the membership organisation linked to Age Concern, has taken the issue of the default retirement age to court. The judge has referred it to the European Court of Justice, and it may take up to two years to get an answer. It is unclear which way the court will go.

In the meantime, employees who are 'being retired' on the basis of a default age are able to put in a precautionary claim for unfair dismissal to an employment tribunal.

It may be that such claims will be held back for consideration until the point of law has been established which may mean employers being hit with delayed action claims in two years' time, and by then the number may have built up. ASCL has so far been unable to get any comment from the DTI.

Schools and colleges may want to reconsider having a default age at all and, as with appointments, focus on the reasons why someone is no longer the appropriate person for the post, be it lack of capability or ill-health, rather than using age as a surrogate.

At the moment the likelihood of employees going to court to insist on their right to work on after 65 is probably remote. We are far more likely to see mass resignations at 55 or 60. However, as a word of caution for employers, it is better to consult your HR adviser in advance than to act first and regret later.