Preparation for the impact of the removal of the retirement age

With the abolition date of the retirement age looming and the recent Ministry of Justice report illustrating an already increase in age discrimination claims, it seems it is now only appropriate for employers to prepare for the impact of the changes and choose a possible route, to benefit from the guidance provided by the European Court of Justice in Fuchs v Land Hassen.

Before October 2011 employers were able to give six months notice of the requirement to retire of an employee at 65. Whilst employees could request to continue to work and employers were obliged to consider, refusal did not require justification and unfair dismissal could not be claimed. After this date however, there cannot be notice given to retire unless the age can be objectively justified.

This objective justification requirement is seemingly set to only increase the recent 2010/2011 claims, reported by the Ministry of Justice, which show that age discrimination claims have been subject to a 30% increase. The report also made clear how, in the less than 30% of cases that made it to a full hearing, the employer was most likely to win in regards to unfair dismissal and discrimination claims. It does seem however that with the area of justification becoming more of a grey cloud it would seem that the likeliness of employers to continue to win such cases is set to decline. 

The next progressive step for employers is to address the impact of the removal of the default retirement age and the European Court of Justice’s, employer-favourable, guidance in the German case of Fuchs v Land Hassen is significant in that it allows the establishment/retention of a internal retirement age. The main points of guidance are to ensure the employer can identify the specific aim in adopting this policy, evidence its proportionality and provide justification for individuals across the whole board. 

Whilst this may aid in ensuring employers retain the higher likeliness to win cases of unfair dismissal and discrimination. It seems that with the ever impending date of abolition, the percentage of claims for age discrimination cannot be capped and is only set to increase.