However, on 25 November 1999, the European Commission proposed a draft directive on equal treatment in employment, irrespective of race or ethnic origin, religion or belief, disability, age or sexual orientation. Agreement was reached on the directive on 11 June 2001 and compliance must be completed by December 2006. National legislation may allow employers to impose age criteria on employment.
They may require minimum experience and set maximum age limits if these can be justified for example, where there is a particular training requirement for the role in question and there must be time available to do this before an individual retires.
However, as some case law already shows, employers may need to be aware of the dangers of age discrimination now. There have already been some decisions on the subject in employment tribunals.
Even before the EC directive was proposed, a Birmingham employment tribunal considered the cases of three men who alleged that they had been unfairly dismissed for redundancy, where the age profile of the workforce was a relevant factor in the employers decision-making.
The employer, LTI Car Bodies, had been hard hit by recession and had had to resort to redundancy. There was an early retirement programme which provided beneficial terms for employees taking retirement before the employers normal retirement age of 65. The company held a series of seminars and required that all those above a certain age should attend them. Only one of the three expressed interest in the scheme. The other two said they wished to work until normal retirement age.
However, all three employees were eventually made redundant. Employees aged 59 years or older were selected in order to correct a developing imbalance in the age profile of the workforce. The employer gave evidence that in only a few years time the employer would have an insufficient number of young, fit and skilled employees.
It was a kindness to the employees to put the early retirement scheme to them so that the resulting severance payment would be more beneficial than the statutory redundancy scheme. The tribunal did not accept this argument, noting that those employees were faced with having more money in the short term but would face unemployment for the remainder of their natural working lives. The three employees were found to have been unfairly dismissed.
More recently the Court of Session in Scotland took a different view. This concerned a Captain Lenting who was employed by Bristow Helicopters as a pilot. The ratio of pilots holding senior rank as captain to those holding junior positions as co-pilots was five to one and in view of this weight towards senior personnel it was decided that the initial selection for redundancy which had become necessary was made from the group of pilots approaching the retirement age of 58. A pilot in this age group would not suffer pension loss if selected for redundancy.
Lenting was one of the group. He complained to the employment tribunal of unfair dismissal saying he had been unfairly selected for redundancy. The tribunal found against the employer who then appealed. This tribunal allowed the appeal. Lenting, along with two other pilots, appealed to the Court of Session, which agreed with the appeal tribunal saying it was rational to approach the problem of redundancies by adopting a series of criteria in succession in order to reduce the pool. As a result Lenting lost his appeal.
These two cases illustrate that age is already a legal issue. Over the next 25 years the proportion of the population aged 50 and above will rise from 33% to 41%. During the same period, the numbers aged between 16 and 50 will fall by 1.5 million. By 2025 for every two people employed there is likely to be one person older than 50 who is either retired or inactive. Employers are advised to look at recruitment, retention and severance policies now rather than wait for legislation to appear.
Email address:
janet.gaymer@haynet.com
Janet Gaymer is senior partner at Simmons & Simmons
