To engage the Wealth
Of Wisdom to be
found amongst older people
ANNA IS AWARDED COSTS
as Judicial Review confirms decision of EAT
AND EUROPEAN COURT MEETS
Chris Perry reports
The
Judicial Review of the decision of the Employment Appeals’ Tribunal to
uphold Anna
Johns’ appeal, set the “striking
out order” issued in the Southampton Employment
Tribunal aside
and “stay” the case pending the outcome of the legal challenge to the
“default” retirement age of 65 years in the European Court, “The Queen (on
the
application of the Incorporated Trustees of the National
Council on Ageing) v The Secretary of State for Trade and Industry” was held
in the Royal Courts of Justice on the 12th June 2008. All three
Judges found in Anna’s favour and awarded costs against her employer Solent
SD.
What was particularly encouraging was the emphasis and recognition of age discrimination in the judgements of all three judges. And since the 12th June Anna has been of even higher profile with an interview with her on the BBC worldwide website, an article in the Guardian and further radio and television interviews. A regularly Mrs Pankhurst!!
developments in Europe too
The European Court of Justice heard the legal challenge to the “default” retirement age of 65 years on the 2nd July, a year before it was expected to do so, and the advice of the Advocate General is expected on the 23rd September 2008 with a judgement before the end of the year.
In the mean time the Government is pressing ahead with its “one Equality Bill for Britain” which will legislate against age discrimination in goods and services but, at the time of writing, still under the mistaken belief that “age discrimination in the workplace was dealt with by the Employment Equality (Age) Regulations 2006” – only if you believe “there are people of working age” and that “older people don’t work”
the background to Anna’s case
Anna Johns is one of fourteen people being represented through an Employment Tribunal by Age Concern Hampshire consequent upon the Employment Equality (Age) Regulations 2006 claiming “unfair dismissal” and “age discrimination” and the only one not to have her case “stayed” pending the outcome of “The Queen (on the application of the incorporated Trustees of the National Council on Ageing) V The Secretary of State for Trade and Industry” which was referred to the European Court of Justice by the High Court on the 6th December 2006.
At the Preliminary Hearing in the Southampton Employment Tribunal on the 19th June 2007 the Chairman issued a “striking out order” on the grounds that he considered “that the prejudice to the Respondent in these proceedings being held in abeyance for a considerable period of time whilst the cases proceed through the European Court of Justice outweigh the prejudice to the Claimant in having struck out a claim”. However the Employment Appeal Tribunal upheld the appeal on the 30th October, set the “striking out order” aside and agreed the case be “stayed”.
Following the hearing the President of the Employment Tribunals issued a directive to all Employment Tribunals, ordering that:
i) All claims currently registered in the Employment Tribunals, and future claims raising the same issue, regarding Regulation 30 of the 2006 Regulations, be stayed pending the decision of the European Court of Justice in Age Concern V Secretary of State;
ii) This Order be reviewed when Judgement is given by the Court of Appeal in the appeal by Solent SD Ltd from the Order of The Honourable Mr Justice Nelson.
iii) It is further Ordered that this Direction be circulated to all known interested parties, and be published on www.tribunals.gov.uk without delay
Anna’s experience
Anna retired from Solent SD at the age of 65 years and went to work for B & Q. A year later her former employer contacted her and invited her back on a part time basis for considerably more pay than at B & Q and in a job she loved. Then, like so many other employers that we have exposed in this paper, Solent SD reviewed its employment policies in the light of the Employment Equality (Age) Regulations and decided all its employees should retire at 65 years of age and gave Anna six months notice of retirement – following the regulations to the letter. Their decision had nothing to do with Anna’s competence, purely her age, they had invited her back, had regular appraisals and she always got good reports.
The Employment Equality (Age) Regulations 2006
No amount of legal argument can disguise the fact that to write people off at 65 years of age is both morally abhorrent and a breach of human rights. All kinds of legal arguments will have been rehearsed down the ages to justify atrocities and persecution of socially excluded groups of people. And it was of no surprise that, rather belatedly, the newly formed Commission for Equality and Human Rights expressed an interest and agreed to underwrite Anna’s legal costs in the Court of Appeal.
The Employment Equality (Age) Regulations 2006, which came into effect on the 1st October 2006, are arguably the most discriminatory piece of legislation ever to hit the Statute Book and were in response to a European Directive – hence the legal challenge through the European Court. Britain was the only Member State, at that time, not to comply and were given special dispensation and a three year extension.
Although the Employment Equality (Age) Regulations outlaw discrimination on grounds of age in the recruitment, promotion and training of staff it is still possible for employers to have a retirement age of 65 years and refuse applications from people over the age of 64 and a half years – there is no other group of people who can be totally excluded or discriminated against in this way. And although employers have to give serious consideration to requests to go on working beyond the age of 65 years and employment rights in respect of “unfair dismissal”, “redundancy pay” and “sick pay” have been extended it is still perfectly legal for employers to give six months notice of retirement without justification. It is this “default” retirement age of 65 years which is subject of legal challenge.
popular support
83% of delegates at Age Concern Hampshire’s 2003 Conference thought there should be no fixed retirement age and that people should be able to decide when it is right for them to retire taking into account their job satisfaction, the pension they would get, their health and personal circumstances – and this had increased to 100% by 2005. There are adequate ways of dealing with incapacity or incompetence amongst people of all ages and, as Anna and others before her have demonstrated, one’s date of birth has no bearing on such matters.
the context, human rights and equality issues
At a time that people are living longer and maturing later in life, it is now the norm for women to have their first child in their thirties rather than twenties and children are in education longer, older people are leaving the work place earlier.
There are 2.8m people, a third of the population, between the ages of 50 and 65 out of work and it is virtually impossible to get work over the age of 65 years.
75% of people who lose their jobs in the 50s never get another one.
Recent Government figures suggest that the number of older people living below the official European poverty line has increased from 2.2m to 2.5 million (an increase of 300,000 people) and Britain the fourth largest economy in the world is ranked 27th in respect of its State Pension.
The prevalence of depression is twice as high amongst people who are out of work as it is those in employment. Many people will therefore be taking depression into retirement and it is hardly surprising that the recent “Health Survey of England” (2007) found that 10% of people over the age of 65 years were exhibiting symptoms of depression.
The awareness of “age discrimination” is about where that of race discrimination was in the 1950s with many of the same denials and rationalisations taking place. A young person cannot experience age discrimination to the same extent as an older person any more than a white person could experience race discrimination to the same extent as a black person. A white person could lose themselves in another white culture: for a black person there was no escape. Similarly a younger person will grow older and out of age discrimination. For an older person the longer it goes on the older they become and the worse it gets. For a younger person it is escapable: for an older person it is inescapable. During the recent debate in the House of Commons, about getting people off benefit and back into work, many MPs were heard to preface their remarks by saying “people of working age”. They were trying to be kind in that they did not want someone who had been retired for any years to think they had to go back to work, oblivious of the fact that they were excluding everyone over the age of 65 years. The Government collects statistics in this way too. We must challenge the phrase “people of working age” and the notion that older people don’t work and belief that “tax payers” contribute to the economy and that older people are a drain on it. In a recent survey by the “CVS Network”, “British Red Cross” and “Help The Aged” 31% of 65 to 74 year olds and 21% of people over 75 said there were involved in volunteering and 90% of those interviewed reported an increase in their self esteem. Therefore not only did today’s older people build the economy but many of them go on contributing as volunteers, trustees, grand parents and baby sitters after retirement from paid work. And we have carried countless examples of tremendous achievement by people in later life both paid and voluntary
Putting the
WOW
into retirement
