Tribunal decision gives workers over 65 the right to claim unfair dismissal

National law firm, Laytons advises employers on recent ruling that could increase employment protection for workers over 65

Laytons the national firm of Solicitors, are today
advising employers that they could, for the first time, face claims from employees aged over 65 for unfair dismissal and redundancy payments. Laytons warns employers that in order to protect themselves they must ensure
employees over 65 are dismissed fairly and that a proper procedure is always followed. The warning comes at a time when older employees are increasingly being retained by employers beyond the state retirement age due to their
wealth of talent and experience.

Laytons advice follows from a recent decision of the Employment Appeal Tribunal, where a 67year old male employee successfully proved that failure
to pay redundancy payments to employees aged over 65 constituted unlawful sex discrimination. The employee had been told that he was to be dismissed on grounds of redundancy and was prevented under current legislation from
claiming a redundancy payment, due to his age. The employee argued that he had suffered indirect sex discrimination, in that he had been treated less favourably than a woman and that the practice, though equally applicable to women, was to the detriment of a considerably larger proportion of men than women, which could not be justified.

Statistical evidence of the unequal treatment must be demonstrated to the Tribunal. Says Joy Hankins, Solicitor, Laytons The Tribunal will adopt a form of comparison, look at actual numbers for both the male and female groups, and look to see if such unequal treatment is substantial.

The Tribunal found that more men than women are looking for work aged 65 and over, and failure to pay similar redundancy payments as for younger employees had a disproportionate impact on men that could not be justified.
The statistics relied upon in this case can now be introduced as evidence in any future claim aiding any applicant in proving unequal treatment.

The effect of this decision could be very far reaching. It may mean that any employment contract or pension scheme that treats employees differently once they reach a certain age could be unlawful. Continues Hankins.

The Tribunal's decision is ahead of a European Directive that will outlaw age discrimination. The UK must implement legislation to combat age discrimination by 2006. Even with such legislation pending, Hankins believes there may be some reluctance to change.

The Tribunal decision is the subject of appeal by the Department of Trade and Industry. Adds Hankins It is impossible to predict whether the decision will be overturned on appeal, but even with the introduction of the European Directive combatiing age discrimination, there may be scope to retain compulsory retirement ages. For once, evolving case law is currently affording greater protection to employees than European legislation.